A plaintiff establishes a prima facie case of racial discrimination based upon a hostile work environment by showing that (1) the plaintiff was a member of a protected class; (2) the plaintiff was subjected to unwelcome harassment; (3) the harassment was race-based; (4) the harassment unreasonably interfered with the plaintiff’s work performance by creating an environment that was intimidating, hostile, or offensive; and (5) the employer was liable for the harassing conduct. Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir.2007) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.1999)). To satisfy the fourth element, “unreasonable interference,” a plaintiff “must present evidence showing that under the ‘totality of the circumstances’ the harassment was ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ “ Id. at 707 (quoting Williams v. Gen. Motors Corp., 187 F.3d 553, 560, 562 (6th Cir.1999) (in turn quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks omitted))). To satisfy the fifth element, “employer liability,” a plaintiff must demonstrate “that [the plaintiff’s] employer ‘tolerated or condoned the [alleged conduct]’ or ‘that the employer knew or should have known of the alleged conduct and failed to take prompt remedial action.’ “ Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir.1999) (quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir.1988)).
Severity and pervasiveness are evaluated according to the totality of the circumstances, considering such factors as “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); see also Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir.2007) (listing factors to be considered in determining whether environment is hostile or abusive). “Facially neutral abusive conduct can support a finding of […] animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly [racially] discriminatory conduct.” O’Shea v. Yellow Tech. Serv’s., 185 F.3d 1093, 1097 (10th Cir.1999). “A plaintiff cannot meet this burden by demonstrating a few isolated incidents of racial enmity or sporadic racial slurs.” Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005). (quotations omitted).
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Gregory A. Hall
A Colorado Civil Rights Attorney
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Denver, CO 80206