An African American former office employee of a Michigan orthodontics practice may proceed with her hostile work environment claim partly alleging that a co-worker repeatedly used language in reference to slavery, a federal judge held in a split decision Monday.
The plaintiff in Vandyke v. Plymouth Orthodontics claimed that the co-worker, who worked with her at the practice’s front desk, subjected her to certain language as a mockery of slavery — such as “I’s,” “You’s,” and “Yessum” — on a daily basis. She informed ownership of the conduct. The practice’s owners prohibited the co-worker from using the alleged slurs but also concluded that “no racial animus or intent” existed.
However, the conduct eventually resumed. Meanwhile, the plaintiff also began to accrue absences that ownership viewed as excessive and causing strain for other employees. In response to the plaintiff’s complaint about the renewed conduct, the owners installed a camera to monitor at the front desk.
Plymouth Orthodontics eventually fired the plaintiff after a string of absences that followed a formal warning. The plaintiff alleged several violations of both Title VII of the 1964 Civil Rights Act and Michigan state law, among which were discrimination on the basis of race, retaliation, hostile work environment and wrongful discharge.
Judge Brandy McMillion granted summary judgment to the practice on most of the employee’s claims, holding that she failed to make a prima facie case of discrimination in part because she could not point to a similarly situated comparator who replaced her or who received more favorable treatment.
McMillion also pointed to the practice’s record of the plaintiff’s attendance issues, stating that no reasonable jury could find an inference of discrimination based on that record.
But the judge refused to grant summary judgment on the harassment and hostile work environment claims, holding that a jury should determine whether the co-worker’s comments — taken together with statements made by two other employees — were racially offensive and whether they were so severe or pervasive as to create a hostile environment.
The court disagreed with the employer’s characterization of the comments in question, finding that they included race-specific and derogatory terms recognized by other courts as referencing language used in the pre-Civil War South. Despite the practice’s attempts to address the alleged conduct, McMillion noted that the conduct continued and therefore a reasonable jury could conclude that the practice had not effectively halted it.
The analysis in Vandyke constitutes an examination of what a hostile work environment looks like. The U.S. Equal Employment Opportunity Commission defines such an environment as featuring harassment that is severe or pervasive enough that a reasonable person would consider it hostile, a description that excludes certain petty slights, annoyances and isolated incidents.
Not all discriminatory behavior gives rise to a hostile work environment. For example, a Kentucky federal judge held in 2024 that a maintenance worker did not provide sufficient evidence of such an environment despite his allegations that racist jokes were used on the job site and that he was addressed with a racial slur.
Conversely, an employee’s hostile work environment claim may be supported by other elements, including secondhand harassment of other employees and employer responses that are insufficient.
Both of these details featured in a 5th Circuit decision issued in July, where that court found in favor of a plaintiff alleging hostile work environment in part because the employer’s investigation contained inconsistencies and did not stop the challenged conduct from continuing.
