How Bad Can It Be Before It’s Discrimination?

“She thinks she’s Indian…”

She “doesn’t represent the Indian community well…”

She’s “a wanna-be Indian…”

She’s a “big-boobed white woman”

These comments were directed toward a Native American female employee of a health clinic in Oklahoma. Shortly after she filed an EEOC complaint for discrimination, she was fired. While such abusive language may seem as a matter of common sense to be more than sufficient to create a discriminatory environment in the workplace, the US Court of Appeals for the 10th Circuit has held that as a matter of law it does not rise to the level of legal discrimination.

In Nettle v. Central Okla. Am. Indian Health Council Inc., the 10th Circuit reviewed a lower court’s dismissal of the woman’s discrimination claims. The lower held that (1) under the “totality of the circumstances,” no reasonable juror could find that the comments created a hostile work environment,(2) the woman did not make a prima facie showing that she had been treated adversely because of her skin color, and (3) there was no causal connection between her filing the EEOC charge and the Clinic’s decision to fire her, hence no retaliatory termination.

On appeal, the 10th Circuit panel noted that Title VII of the Civil Rights Act proscribes employment practices that “permeate the workplace with ‘discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ However, they affirmed the lower court’s decision to dismiss the claim, finding that the comments directed at the woman did not rise to the level of actual discrimination.

We can easily understand that it could be annoying and irritating for a person of one racial mix to be mistaken for another, but there is no precedent for regarding a mistaken racial identifier—not employing any epithetical terminology—as opprobrious or abusive.” The Court also stated that none of the comments “strike us as sufficiently severe or opprobrious (considered objectively) that a reasonable jury would regard them “alter[ing] the conditions of the victim’s employment and creat[ing] an abusive working environment.”

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