Canady v. Wal-Mart Stores (8th Cir.)
Amicus brief in support of petition for rehearing
Apr. 14, 2006
                            No. 05-1137
           __________________________________________
                                
             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE EIGHTH CIRCUIT
           __________________________________________
                                
MYRON CANADY,

     Plaintiff-Appellant,

v.

WAL-MART STORES, INC.,

     Defendant-Appellee.

      ___________________________________________________
                                
        On Appeal from the United States District Court
    for the Western District of Missouri, Southern Division
                  Hon. Richard E. Dorr, Judge
      ___________________________________________________
                                
          BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT
            OPPORTUNITY COMMISSION AS AMICUS CURIAE
         IN SUPPORT OF CANADY'S PETITION FOR REHEARING
              AND SUGGESTION FOR REHEARING EN BANC
      ____________________________________________________
                                
JAMES L. LEE                       GAIL S. COLEMAN
Deputy General Counsel             Attorney

VINCENT J. BLACKWOOD               U.S. EQUAL EMPLOYMENT
Acting Associate General Counsel      OPPORTUNITY COMMISSION
                                   Office of General Counsel
CAROLYN L. WHEELER                 1801 L Street, NW, Room 7034
Assistant General Counsel          Washington, DC 20507
                                   (202) 663-4055
                                   gail.coleman@eeoc.gov

                      STATEMENT OF COUNSEL

     I believe, based on a reasoned and studied professional judgment, that this
proceeding involves a question of exceptional importance:  Whether a supervisor's
use of egregious racial slurs to and about a subordinate can so poison the
atmosphere that the supervisor's comments alone can create a racially hostile work
environment in violation of Title VII.
     
                              
     
                              ______________________________
                              Gail S. Coleman, Esq.

     
                       TABLE OF CONTENTS
                                
                                
STATEMENT OF COUNSEL . . . . . . . . . . . . . . . . . . . . . .i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii

STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .1

  A. Statement of Facts. . . . . . . . . . . . . . . . . . . . .1

  B. District Court Decision . . . . . . . . . . . . . . . . . .3
  
  C. Eighth Circuit's Panel Opinion. . . . . . . . . . . . . . .3
  
  D. Dissenting Opinion. . . . . . . . . . . . . . . . . . . . .4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

     The panel's opinion undermines Title VII enforcement by misapplying
     the severity prong of the hostile environment analysis to egregious racial
     slurs made by a supervisor to and about a subordinate. . . . . .5

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

                      TABLE OF AUTHORITIES
                                
                             Cases
Ezell v. Potter, 400 F.3d 1041 (7th Cir. 2005) . . . . . . . . 10

Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . 10

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . 10, 11

Hocevar v. Purdue Frederick Co., 223 F.3d 721 (8th Cir. 2000). .4

Lenoir v. Roll Coater, Inc., 13 F.3d 1130 (7th Cir. 1994). . . 11

McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) . 5, 6

Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 
(M.D. Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . 10

Rocha Vigil v. City of Las Cruces, 119 F.3d 871 
(10th Cir. 1997) (denying petition for reh'g) (Lucero, J., dissenting)7

Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993)7, 10

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). . .7

Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001) . .6, 7, 8

Taylor v. Metzger, 706 A.2d 685 (N.J. 1998). . . . . . . . .8, 10
                                
                            Statutes
Title VII of the Civil Rights Act of 1964,
42 U.S.C.  2000e. . . . . . . . . . . . . . . . . . . . . . . .1
                                
                       Other Authorities
Okianer Christian Dark, Racial Insults:  "Keep Thy Tongue From Evil,"
24 Suffolk U. L. Rev. 559 (Fall 1990). . . . . . . . . . . . . .6

Okianer Christian Dark, Racial Insults:  "Keep Thy Tongue From Evil,"
24 Suffolk U. L. Rev. 559 (Fall 1990). . . . . . . . . . . . . .6

    Richard Delgado, What if Brown v. Board of Education Was
 a Hate-Speech Case? 1 Stan. J. Civ. Rts. & Civ. Liberties 271 
                  (Apr. 2005) (Book Review) 6

   Anna Ditkoff, Jockeying for Respect, Baltimore City Paper,
           Jan. 21, 2004 (Book Review), available at 
        http://www.citypaper.com/arts/story.asp?id=50069

Michele Goodwin, Nigger and the Construction of Citizenship,
76 Temp. L. Rev. 129 (Summer 2003) . . . . . . . . . . . . . . .6
                                
  David Pilgrim and Phillip Middleton, Nigger and Caricatures,
 Ferris State Univ. Museum of Racist Memorabilia (Sept. 2001),
    available at http://www.ferris.edu/jimcrow/caricature/ 6
                                
Wikipedia, the Free Encyclopedia, Nigga (April 2006), available at
http://en.wikipedia.org/wiki/Nigger. . . . . . . . . . . . . 2, 8
                                

                     STATEMENT OF INTEREST
                                
     The Equal Employment Opportunity Commission ("EEOC") is charged by
Congress with interpreting, administering, and enforcing Title VII of the Civil Rights
Act of 1964, 42 U.S.C.  2000e et seq.  This case raises an important issue related to
Title VII:  the degree to which racial slurs made by a supervisor to and about a
subordinate can, without more, create a racially hostile work environment.  Given the
importance of this issue to effective enforcement of Title VII, the EEOC offers its
views to the Court.  The EEOC files this brief pursuant to Rule 29(a) of the Federal
Rules of Appellate Procedure.
                     STATEMENT OF THE ISSUE
     Did the panel misapply the severity prong of the hostile environment analysis
when evaluating the impact of racial slurs made by a supervisor to and about a
subordinate employee?

                     STATEMENT OF THE CASE
     A.   Statement of Facts
     Myron Canady, an African American, was a produce associate at the
Springfield, Missouri, Wal-Mart for six months until he was terminated in December
2001.  Paul Smith, who was white, was Canady's direct supervisor.  440 F.3d at 1033. 
Shortly after meeting Canady, Smith told him that his own reputation in the store was
that of a "slave driver."  Canady complained about this comment to Smith's
supervisor and one week later Smith apologized to Canady.  Id.
     Later that summer, in front of several of Canady's white co-workers, Smith
asked Canady, "What's up, my nigga?"  When he said this, Smith attempted to mimic
Jackie Chan in the movie Rush Hour.  Id.  In that movie, Chris Tucker (an African
American actor) enters an all-black bar with Jackie Chan.  Tucker says this phrase to
the African American bartender and gets a benign reaction.  Later, Chan repeats the
line to the same bartender while affecting an African American dialect.  Chan's
comment immediately provokes a riot.  Wikipedia, the Free Encyclopedia, Nigga
(April 2006), available at http://en.wikipedia.org/wiki/Nigger [hereinafter
Wikipedia].  Several weeks after Smith attempted his Jackie Chan impersonation,
Canady complained to Smith's supervisor about this comment, too.   Smith then
apologized once again.  440 F.3d at 1033.
     Canady also introduced evidence that Smith referred to him on several
occasions as a "lawn jockey," said that all African Americans look alike, and
remarked that his skin color seemed to wipe off onto towels when he sweated.  Id. 
Although Smith did not make all of these comments directly to Canady, all of the
comments were specifically about him.  Id. at 1036 (Lay, J., dissenting).
     

     B.   District Court Decision
     Canady sued Wal-Mart for a racially hostile work environment.  The district
court granted Wal-Mart's motion for summary judgment.  (R.78, Slip Op.)  The court
emphasized that "the [N] word was used only one time, and in the context of a quote
from a Jackie Chan movie."  (Id. at 10.)  The court also noted that "the comments of
lawn jockey' and generalization of all African Americans looking alike are assumed
to have been made, but there is no record of when, how frequent, or even the context
of the remarks."  (Id. at 11.)  Observing that Canady had  not been threatened or
physically harmed, the court concluded that Smith's comments were "more akin to
racial insensitivity and off-hand comments than racial harassment."  (Id. at 12.)
     C.   Eighth Circuit's Panel Opinion
     On appeal, this Court affirmed the award of summary judgment.  The Court
held that Canady could not establish that his workplace "was permeated with
discriminatory intimidation, ridicule, and insult.'"  440 F.3d at 1035 (quoting
Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir. 2003)).  "Taking
Canady's allegations as true," the Court said, "Smith's comments were offensive, but
insufficient to meet the threshold of actionable harm."  Id.  The Court emphasized
that Smith had apologized for two of his remarks and that he did not repeat either of
those comments after apologizing.  Id.  "In light of these facts," the Court said, "we
conclude that, however ill-chosen Smith's comments, including his other earlier-
described racially tinged statements, and however ill-advised his attempts at racial
humor, Smith's conduct did not give rise to an actionable claim of racial hostility." 
Id.  
     D.   Dissenting Opinion
     Judge Lay dissented and warned that "the majority opinion sets a new and
dangerous precedent for this circuit."  Id. (Lay, J., dissenting).  Reviewing the
evidence, Judge Lay noted that "this is not a case where a singular, isolated comment
is the source of plaintiff's action."  Id. at 1036.  He noted that Canady's supervisor
had called himself a "slave driver" when he first met Canady, and that he continued
to repeat racially humiliating epithets throughout the course of Canady's seven month
employment.  Id.  He also emphasized that "harassment by a supervisor has a greater
power to alter the environment' than similar actions of mere co-workers."  Id.
(quoting Hocevar v. Purdue Frederick Co., 223 F.3d 721, 728 (8th Cir. 2000)).
     Judge Lay rejected the majority's reliance on Smith's apologies.  "Although
apologies, to be sure, must be factored into the hostile work environment calculus,"
he said, they are by no means a panacea for harassment that has already occurred." 
Id.  Noting that Smith had made numerous racially offensive remarks for which he
had not apologized, Judge Lay concluded that "Smith's apology, in this instance, does
little to change the severity [or] pervasiveness of the racial harassment Canady was
forced to endure."  Id.
                              ARGUMENT
     The panel's opinion undermines Title VII enforcement by misapplying
     the severity prong of the hostile environment analysis to egregious racial
     slurs made by a supervisor to and about a subordinate.

     The EEOC believes that the panel's opinion underestimates the effect of a
supervisor's racial slurs to and about a subordinate, and that it sets an impermissibly
high standard for proving a racially hostile work environment.  We urge this Court
to adopt a standard for evaluating racial harassment claims that more fully recognizes
the historical and social context of race relations in this country, the power imbalance
that exists between supervisors and their subordinates, and the inflammatory nature
of certain racial epithets  specifically, the degrading and dehumanizing impact of the
N-word.
     As the Ninth Circuit has recognized, "Racially motivated comments or actions
may appear innocent or only mildly offensive to one who is not a member of the
targeted group, but in reality may be intolerably abusive or threatening when
understood from the perspective of a plaintiff who is a member of the targeted
group."  McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004).  This is
especially true of the N-word, which, perhaps more than any other, "evok[es] a
history of racial violence, brutality, and subordination.  This word is perhaps the
most offensive and inflammatory racial slur in English . . . a word expressive of racial
hatred and bigotry.'"  Id. (quoting Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th
Cir. 2001)).  
     One scholar explains the import of the N-word as follows:
     "Nigger" was the word kissing the air as families were auctioned
     throughout the American South.  It hovered below black lynched bodies
     and accompanied civilian and police brutality against blacks throughout
     the last century.  It was the word used by Sheriff Clarence Strider each
     day during the trial against two white men accused [of] (acquitted, but
     later confessing to) brutally slaying fourteen year-old Emmit Till. 
     Neither man ever served time for the murder.  Sheriff Strider, the town's
     law enforcement official, greeted black court reporters and Till's mother
     each day with, "hello niggers."

Michele Goodwin, Nigger and the Construction of Citizenship, 76 Temp. L. Rev.
129, 193 (Summer 2003); see also David Pilgrim and Phillip Middleton, Nigger and
Caricatures, Ferris State Univ. Museum of Racist Memorabilia (Sept. 2001), available
at http://www.ferris.edu/jimcrow/caricature/ ("Nigger is the ultimate expression of
white racism and white superiority, irrespective of the way it is pronounced.");
Okianer Christian Dark, Racial Insults:  "Keep Thy Tongue From Evil," 24 Suffolk
U. L. Rev. 559, 566 (Fall 1990) ("Nigger' dredges up the entire history of America's
legal dehumanization of blacks in slavery."); Richard Delgado, What if Brown v.
Board of Education Was a Hate-Speech Case? 1 Stan. J. Civ. Rts. & Civ. Liberties
271, 278 & n.94 (Apr. 2005) (Book Review) ("[T]he English language contains no
correlate for nigger in the lexicon of terms for whites."  Terms such as honkey,
cracker, and white trash "do communicate that the black dislikes the white.  But, by
themselves they do not carry an implied threat nor call up and evoke long histories
of oppression.").
     Several, though not all, courts already recognize the negative impact of the N-
word in the workplace.  The Fourth, Seventh, and Ninth Circuits all have recognized
that a single utterance of this racial epithet may be enough to create a hostile work
environment.  See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001)
("Far more than a mere offensive utterance,' the word nigger' is pure anathema to
African Americans."); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675
(7th Cir. 1993) ("Perhaps no single act can more quickly alter the conditions of
employment and create an abusive working environment' than the use of an
unambiguously racial epithet such as nigger' by a supervisor in the presence of his
subordinates.") (citations omitted); Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th
Cir. 2001) ("nigger" is "perhaps the most offensive and inflammatory racial slur in
English, . . . a word expressive of racial hatred and bigotry'") (quoting Merriam-
Webster's Collegiate Dictionary 784 (10th ed. 1993)); see also Rocha Vigil v. City of
Las Cruces, 119 F.3d 871, 873 n.3 (10th Cir. 1997) (denying petition for reh'g)
(Lucero, J., dissenting) ("The cautionary language of Meritor does no more than point
out that the single utterance of a term that engenders offensive feelings cannot
substantiate a hostile work environment claim.  That does not mean that severely
degrading, racially derogatory insult of the worse kind escapes actionability under
Title VII simply because it is used only occasionally."); Taylor v. Metzger, 706 A.2d
685, 693-94 (N.J. 1998) (holding that a single derogatory racial comment from a
supervisor to a subordinate can create a hostile work environment under state law
whose standards parallel those of Title VII).
     In the instant case, the undisputed evidence shows that Canady's white
supervisor said to him, in front of white coworkers, "What's up, my nigga?"  440 F.3d
at 1033.  The panel majority minimizes the import of this comment by noting that
Smith was attempting to mimic Jackie Chan in the film Rush Hour, characterizing his
statement as an "ill-advised . . . attempt[] at racial humor," and observing that he
apologized to Canady.  Id. at 1033, 1035.  None of these observations diminishes in
any way the hostile impact of a white supervisor's using the N-word to an African
American subordinate.  
     The panel failed to note that, in the movie Rush Hour, Chan's use of the N-
word so offended his African American listeners that it prompted an immediate riot. 
Wikipedia, supra, at Nigga.  In quoting Chan to Canady, therefore, Smith must have
been aware of the inflammatory nature of the "what's up" statement.  Even if Smith
was "joking," he had to know that Canady would be deeply offended.  See Swinton,
270 F.3d at 799 ("Although much of what happened here was characterized as
jokes,' neither the discrimination nor the jury verdict is a laughing matter.").  The
panel majority also misapprehended the significance of Smith's apology, which is
likewise inadequate to alleviate the impact of the racial harassment.  Smith did not
apologize to Canady until after Canady complained to Smith's supervisor, and the
apology did not come until several weeks after Smith originally made the offensive
comment.  An apology that is neither timely nor spontaneous cannot undo the damage
that an egregious racial insult has already caused.
     The panel majority also failed to note the cumulative effect of Smith's repeated
racial insults.  Over the course of only seven months, in addition to calling Canady
the N-word, Smith referred to himself as a "slave driver," repeatedly referred to
Canady as a "lawn jockey,"<1> commented that all African Americans look alike, and
remarked that Canady's skin color seemed to wipe off onto towels when he sweated. 
440 F.3d at 1033.  Far from being a case where a plaintiff seeks to impose liability
based on a coworker's single use of an egregious racial epithet, this is a case where
a supervisor coupled an egregious epithet with a repeated barrage of hateful racial
jokes and commentary directed to and at a subordinate.  See Rodgers, 12 F.3d at 675
("A holistic perspective is necessary, keeping in mind that each successive episode
has its predecessors, that the impact of the separate incidents may accumulate, and
that the work environment created thereby may exceed the sum of the individual
episodes.'") (quoting Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486,
1524 (M.D. Fla. 1991)).  The fact that the invectives came from Canady's supervisor
rather than his coworkers only heightened their impact.  See Faragher v. City of Boca
Raton, 524 U.S. 775, 803 (1998) (recognizing that, unlike with coworker harassment,
employees are not free to walk away when their supervisor is the harasser);  Rodgers,
12 F.3d at 675 ("a supervisor's use of the term impacts the work environment far
more severely than use by co-equals"); Taylor, 706 A.2d at 691 (severity of slur is
"exacerbated by the fact that it was uttered by a supervisor").
     The Supreme Court has made clear that an actionable hostile work environment
requires a finding of either severe or pervasive harassment.  Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993).  Harassment that is especially severe need not be
pervasive in order to impose liability under Title VII.  See Ezell v. Potter, 400 F.3d
1041, 1048 (7th Cir. 2005) ("in the case of racial and ethnic slurs, some words are so
outrageous that a single incident might qualify for a hostile environment claim");
Taylor, 706 A.2d at 690 ("The standard contemplates conduct that is either severe or
pervasive.  Although the conduct may be both, only one of the qualities must be
proved in order to prevail.  The severity of the conduct may vary inversely with its
pervasiveness.").
     Here, Canady has offered evidence that, if proved, would demonstrate that his
supervisor poisoned his workplace with repeated comments whose purpose and effect
was to denigrate Canady on the basis of his race.  Title VII protects employees from
having to tolerate such an abusive working environment.
                           CONCLUSION
     The EEOC urges the Court to reexamine this case not in the light of its own
previous case law, but from a perspective that accounts for the actual impact of racial
slurs on members of a minority group.  The Supreme Court's warning that a hostile
work environment requires more than a "mere offensive utterance," Harris, 510 U.S.
at 21, should have no bearing on a case involving a supervisor's use of egregious
racial insults to and about a subordinate.  Such insults cannot properly be
characterized as "mere offensive utterances."  To the contrary, they are powerful
terms whose use can contaminate the environment.  "[D]erogatory terms such as
nigger' have no place in the employment setting."  Lenoir v. Roll Coater, Inc., 13
F.3d 1130, 1133 (7th Cir. 1994).  We believe this case presents an opportunity for the
Court to make this clear.
     For the reasons stated above, the EEOC urges this Court to grant the
petition for rehearing and/or the suggestion for rehearing en banc.
                         Respectfully submitted,
                         JAMES L. LEE
                         Deputy General Counsel

                         VINCENT J. BLACKWOOD
                         Acting Associate General Counsel

                         CAROLYN L. WHEELER
                         Assistant General Counsel

                         ________________________________
                         GAIL S. COLEMAN
                         Attorney

                         U.S. EQUAL EMPLOYMENT
                            OPPORTUNITY COMMISSION
                         Office of General Counsel
                         1801 L Street, NW, Room 7034
                         Washington, DC 20507
                         (202) 663-4055
                         gail.coleman@eeoc.gov

                   CERTIFICATE OF COMPLIANCE
                                
     This brief complies with the type-volume limitation of Fed. R. App. P.
29(d), 32(a)(7), and  40(b) because it contains 2547 words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B).
     This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Office Word
2003 with 14 point Times New Roman.

                         ________________________________
                         GAIL S. COLEMAN
                         Attorney

                         U.S. EQUAL EMPLOYMENT
                            OPPORTUNITY COMMISSION
                         Office of General Counsel
                         1801 L Street, NW, Room 7034
                         Washington, DC 20507
                         (202) 663-4055
                         gail.coleman@eeoc.gov

                     CERTIFICATE OF SERVICE
     I, Carolyn L. Wheeler, hereby certify that I filed this brief with the Court
this 14th day of April, 2006, by sending, via Federal Express, 21 paper copies
pursuant to Rule 35A(1) of the Eighth Circuit Rules, as well as a computer disk
containing a digital version of the brief in PDF format pursuant to Rule 28A(d) of
the Eighth Circuit Rules.  The diskette has been scanned for viruses and is virus-
free.  
     I also certify that I served two paper copies of the brief and one digital copy
of the brief this 14th day of April, 2006, by first-class mail, postage pre-paid, to
the following counsel of record:
          Les Boyle, LLC
          1911 South National Ave., Suite 303
          Springfield, MO 65804

          Denise M. Anderson
          Anderson Law Group
          110 West Ninth St.
          Kansas City, MO 64105

                         ________________________________
                         CAROLYN L. WHEELER
                         Assistant General Counsel

                         U.S. EQUAL EMPLOYMENT
                            OPPORTUNITY COMMISSION
                         Office of General Counsel
                         1801 L Street, NW, Room 7054
                         Washington, DC 20507

********************************************************************************
<<FOOTNOTES>>

<1> Lawn jockey is a reference to a yard ornament representing a stereotypical black 
man with exaggerated facial features.  Kenneth Goings, chair of African-American and 
African Studies at Ohio State University, explains that lawn jockeys are meant to evoke 
that old South, grand plantation, Gone With the Wind mythology, and Im not sure they 
can evoke anything else.  Anna Ditkoff, Jockeying for Respect, Baltimore City Paper, 
Jan. 21, 2004 (Book Review), available at 
http://www.citypaper.com/arts/story.asp?id=5006.