Blog Outline

Short on time? Jump to relevant sections by clicking the links below:

1. i. Introduction.
2. ii. Derogatory Comments, Mockery, or Insults.
3. iii. Touching, pulling and/or insulting a person’s traditionally hairstyles or stereotypes about a person’s hairstyle.
4. iv. Imagery or use of a hangman’s noose.
5. v. Cartoons, dolls, videos and other media depicting racist imagery.
6. vi. Use of offensive accents or ridicule of accents. 
7. vii. Dehumanizing statements such as calling a Black person a “monkey”.
8. viii. Derogatory comments or stereotypes about the scent of a person’s body.
9. ix. Use of racial epithets such as the “N-Word”, “sp*k” “b**ner” or “ch*nk”, other racist slurs.
10. x. Insults directed at other people.
11. xi. Racially based staffing decisions.
12. xii. Other stereotype-based discrimination.
13. xiii. Conclusion.

Introduction: Race Discrimination in the Workplace. 

Race discrimination in the workplace is often hard to prove in court. Like sexual harassment, the courts in Washington state and elsewhere have determined certain acts and statements in the workplace to be unequivocally racist, discriminatory, and compensable in court in some circumstances.

Like the Washington Supreme Court recently reaffirmed, “[w]hether explicit or implicit, purposeful or unconscious, racial bias has no place in a system of justice.” Henderson v. Thompson, No. 97672-4 (Wash. Oct. 20, 2022). Additionally, the Washington Supreme Court has determined unequivocally, that it owes a duty to increase access to justice, reduce and eradicate racism and prejudice, and continue to develop our legal system into one that serves the ends of justice. Open Letter from Wash. State Sup. Ct. to Members of Judiciary & Legal Cmty. (June 4, 2020).

This article attempts to pinpoint for you certain types of behaviors, statements, or acts that would likely count as discrimination in the workplace under Washington and federal law. Below are a few examples of what courts have found to be discriminatory in the workplace and in other relevant circumstances such as in the courtroom. If you see things like what is listed below, make sure to call an experienced employment attorney!

Derogatory Comments, Mockery, or Insults.

 Although it is clear that “[n]ot every insult or harassing comment will constitute a hostile work environment,” “[r]epeated derogatory or humiliating statements … can constitute a hostile work environment.” Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir.2000).See Johnson v. Advocate Health and Hospitals Corp., 892 F.3d 887 (7th Cir. 2018)(finding race discrimination when a Black/African-American plaintiff was told she had a “black girl ghetto attitude”); see also Collins v. Landry’s, Inc. No. 2: 13-cv-01674-RFB-VCF (D. Nev. Aug. 19, 2016) (denying summary judgment based on evidence that the plaintiff was referred to as a ““token black girl”); Johnson v. State, Dept. of  S & HS, 907 P.2d 1223, 80 Wn. App. 212 (Div. II, 1996) (an investigator finding “`racial issues'” were involved, Smith’s incorrect portrayal of Commander Aston’s statements regarding “`the black guy,'” and two unidentified DSHS employees’ opinions that Nye “had a problem with” Johnson’s race were enough to reverse the summary judgment in favor of plaintiff Johnson).

In Alonso, employees, including Alonso’s supervisor, used the racially derogatory term “Sp*cs” to refer to some Mexicans, including Plaintiff. See Alonso v. Qwest Communications Co., LLC, 315 P.3d 610, 178 Wn. App. 734 (Ct. App. 2013). Coworkers also characterized Alonso and his speech as like that of a “ghetto Hispanic” implying that he spoke incorrect English. And, coworkers openly mocked Alonso’s speech, to the point that another employee confronted Martinez in Alonso’s defense.

The court found that the bullying was so pervasive that other employees noticed and sympathized with Alonso; one coworker opined that Alonso’s treatment was so bad that “[i]t was evident in the way that Ben Martinez treated Joseph Alonso that he did not like him and that he was trying to make Joseph’s working conditions so poor that Joseph would quit.” Id. at 140. Because of the severity of this unbridled bullying and harassment, this hostile work environment amounted to an adverse employment action.

In Davis, the plaintiff, an African American, was hired as a salesman During the course of his five-month employment, Mr. Davis experienced racially charged comments in the workplace including:

• a.  Mr. Davis’s supervisor asked Mr. Davis if he knew “why blacks have a day off on Martin Luther King Day?” When Mr. Davis said he did not know, Mr. Willard responded, “Because they shot and killed his black ass.” 
• b.  Another time, Mr. Willard stated, “Blacks on the eastside, Mexicans on the west; hell I don’t know.” 
• c.  Mr. Willard walked by Mr. Davis’s desk, kicking it and remarking, “What’s up, bitch.” Mr. Davis was offended, regarding “bitch” as a derogatory term some African American men use to refer to each other. 
• d.  On an occasion when Mr. Davis had customers in the finance office and his telephone rang, Mr. Klein stopped him from answering stating, “Hey, Buckwheat, you can’t get that call.” 
• e.  One day after Mr. Davis had sold a car to a woman who worked with his wife, and whose husband had previously bought a car from Mr. Klein, Mr. Klein grew angry and stated, “if you’re going to be here at West One Automotive Group, you need to do things our way.” 
• f.  Another time, some customers arrived to see Mr. Davis and Mr. Klein told him he had “black people” waiting for him. Mr. Davis was offended, noting he did not refer to Mr. Klein’s customers as “white people.” 

Although not an employment case, in Turner, a new trial was granted based on racial bias in a civil case where during deliberations some jurors referred to counsel, who was of Japanese descent and whose last name was “Kamitomo,” as “`Mr. Kamikazi’ or `Mr. Miyashi’ or `Mr. Miyagi.'” Turner v. Stime, 153 Wn. App. 581, 585-586, 222 P.3d 1243 (2009). The reviewing court found that that the jury had committed misconduct for making explicitly biased comments against the Asian American attorney, entitling the parties to a retrial. Id. Same or similar language or insults could be used as evidence to support race discrimination if used in the workplace. 

In EEOC v. Sunbelt Rentals, (a religious discrimination case) among other things (as discussed below) Plaintiff, a Muslim American, was referred to as “Taliban” and a “t*wel head”. In addition, fellow employees frequently made fun of Ingram’s appearance, challenged his allegiance to the United States, suggested he was a terrorist, and made comments associating all Muslims with senseless violence. Sometimes Ingram’s supervisors personally participated in the harassment. In another incident, a co-worker called Ingram a “fake ass Muslim want-to-be turbine wearing ass.” In a separate incident, Gray showed Ingram a stapler and said that “if anyone upsets you pretend this stapler is a model airplane [and] just toss it in the air, just repeatedly catch it, [and] don’t say anything.” Ingram understood this to be a reference to the September 11 attacks and another attempt by Gray to equate Ingram with terrorists. The court found  the evidence established that Ingram “persistently suffered from religious harassment of the most demeaning, degrading, and damaging sort” and reversed the district court. Again, similar language could support race discrimination if directed at Middle Eastern or Arab individuals. 

Touching, pulling and/or insulting a person’s traditionally hairstyles or stereotypes about a person’s hairstyle.

Pulling and insulting a person’s hair can be evidence of race discrimination. “Race includes physical appearances and behaviors that society, historically and presently, commonly associates with a particular racial group, even when the physical appearances and behavior are not `uniquely’ or `exclusively’ `performed’ by or attributed to a particular racial group.” These historic race markers can include hairstyles. Washington law specifically protects certain hairstyles of Black or African Americans and defines “protective hairstyles” to include without limitation “afros, braids, locks, and twists.” See RCW 49.60. 040(21). Moreover, recent studies show Black women with natural hairstyles including curly afros, twists or braids are less likely to get job interviews than White women or Black women with straightened hair.

In Newman, the employer pulled a Black woman’s hair while it was in braids, saying she could “leave it behind.” Newman v. Amazon. com, Inc., No. 21-cv-531 (DLF) (D.C. Mar. 31, 2022). The Court found that it could “nevertheless plausibly infer that by commenting about ‘leav[ing] [her hair] behind,’ was referring to a weave and thus it is plausible that his comment related to race.” Id. See also Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 415 (5th Cir. 2015) (defendant said that he “know[s] how much you people spend on your ethnic hair styles”); see also Woods v. FacilitySource LLC, No. 2:13-cv-621, 2015 WL 247980, at *17 (S.D. Ohio Jan. 20, 2015) (a defendant said that the plaintiff had “nappy” hair). 

Imagery or use of a hangman’s noose.

The use of a noose or other racist imagery can be enough to show discrimination in the workplace. 

For example, recently, in Lawrence, the plaintiffs alleged that the manager of the manufacturing facility, Robert Nagel, made repeated false complaints against Skyward (a Black male) to bring about the termination of the contract, and that he stated that “he would not stop until he got rid of Skyward.”  See Lawrence v. DAP Products, Inc., Civil Action No. ADC-22-651 (D. Md. June 23, 2022). Plaintiffs also alleged that Mr. Nagel treated Skyward less favorably than other white-owned companies and that Skyward’s drivers encountered a hangman’s noose at the manufacturing facility Mr. Nagel managed. Id. The court ultimately found that a hangman’s noose in the workplace was enough to “support Plaintiff’s allegation of racial animus and efforts to impede performance of the contract.” 

In another case, McIver (a Black female) sued for race discrimination when a noose was found on the machine of two Black employees in the MTS department. McIver did not see the noose personally but saw a picture of it. And, according to McIver, Hawley later told her that he made the noose. Hawley also bragged in the presence of other employees that he hung the noose as well. According to McIver, a different employee, Jason Wheeler, took the blame for the noose so that Hawley would not lose his job. And McIver claims that Wheeler was not disciplined, even after taking the blame, because his uncle managed the Bridgestone plant. Although the court did not find a severe and pervasive workplace, the court ruled that “[t]he use of a noose to intimidate a Black person is a despicable and heinous act.” McIver v. Bridgestone Americas, Inc., 42 F.4th 398, 410 (4th Cir. 2022).

Cartoons, dolls, videos and other media depicting racist imagery.

In LaRocca, defendant’s employees crudely painted a white toy doll the color black and placed it in a black co-worker’s chair just to get a rise out of him. LaRocca v. Precision Motorcars, Inc., 45 F. Supp. 2d 762 (D. Neb. 1999). The court used this, among other pieces of evidence to conclude that LaRocca was the victim of race discrimination. 

Similarly, in Demetric Di-Az v. Tesla, in the workplace, Plaintiff saw “a picture of a cartoon depicting a black face person with a bone in his hair with the caption under it saying booo.” DI-AZ v. TESLA, INC., No. 3: 17-cv-06748-WHO (N.D. Cal. Dec. 30, 2019). The image resembled racist cartoons from the 1920s and 1930s, and Diaz understood “Booo” to mean “J*gaboo”, an extremely racist term. Martinez, a co-worker admitted to it and said to Diaz, “You people can’t take a joke.” The court found that there was enough evidence to support a claim for race discrimination. 

In EEOC v. Sunbelt Rentals, among other things (as discussed above) Ingram, a Muslim American, sued for religious discrimination. See EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008). While working for Defendant, a cartoon was posted in the store’s dispatch area depicting persons “dressed in Islamic or Muslim attire” as suicide bombers. Taking offense, Ingram complained about the cartoon to the dispatcher and eventually tore it down. The court viewed this, along with evidence of co-workers calling him “Taliban” and “t*wel head” as evidence of discrimination. 

In Fonseca, Mendoza, a Mexican-American co-worker, of Plaintiff, was also subjected to explicit racial slurs, including once when Mendoza caught a rat in the food warehouse and his co-workers drew a sexually explicit cartoon of him as a “Mexican rat” caught in a trap. Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 844 (9th Cir. 2004). Taking into consideration the evidence of animus and drawing inferences in Fonseca’s favor, the court held that it was  “more than sufficient to establish a prima facie case” of race discrimination. 

Note: If you encounter this type of offensive racist imagery, be sure to document it by keeping a picture or copy of it. You can also discretely text or email a witness to confirm that they saw the offensive imagery too. The most important thing you can do is keep evidence of what you saw or experienced. 

Use of offensive accents or ridicule of accents.

Sometimes, ridiculing accents or the use of offensive accents can be evidence of race discrimination in the workplace. In Fonseca, among other things (as discussed above) co-workers made fun of Plaintiff, a Mexican-American man, for his accent. Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 849 (9th Cir. 2004). For example, at one point, Fonseca reported a problem to Peterson, a white co-worker. Peterson was familiar with the problem, and Fonseca spoke clearly, but Peterson pretended not to understand Fonseca. Fonseca repeated himself more than once while Peterson laughed at him and mocked his accent and repetition. Id. at 844. Fonseca testified that he had never seen Peterson make fun of other employees’ accents. The conversation with Peterson was not the only overtly negative reference to Fonseca’s accent: earlier that year, Fonseca’s immediate supervisor, Lee Rhodes, said to Fonseca: “Your accent is real weird.” Fonseca replied, “It’s probably because I’m not Mexican.”

As the court in Fonseca noted, Title VII prohibits an employer from treating an employee disparately because he has an accent, unless the job requires a certain accent. Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1195 (9th Cir.2003) (“Accent and national origin are obviously inextricably intertwined in many cases.”) (quoting Fragante v. City & County of Honolulu, 888 F.2d 591, 596 (9th Cir.1989)).

Dehumanizing statements such as calling a Black person a “monkey”.

Dehumanizing conduct, such as referring to Black people as monkeys is inherently racist and clear evidence of race discrimination. 

In Boyer-Liberto, the African-American plaintiff alleged hat within a single twenty-four-hour period in September 2010, while working as a cocktail waitress at the Clarion Resort Fontainebleau Hotel in Ocean City, Maryland (the “Clarion”), she was twice called a “porch monkey” and threatened with the loss of her job by a Caucasian restaurant manager. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015). The court concluded that “describing an African-American as a monkey … goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.” 

In another case, the court noted that “conveying highly offensive derogatory stereotypes of black people” were evidence of discrimination, such as the harasser, telling the employee that her straightened hair made her resemble a “mixed monkey” from the movie Planet of the Apes. See Smelter v. Southern Home Care Services Inc., 904 F.3d 1276 (11th Cir. 2018).

Note: If you or someone at work is dehumanized or likened to a monkey at work, make sure to document it however you can. 

Derogatory comments or stereotypes about the scent of a person’s body.

Derogatory comments about the scent of a person’s body have been found to be evidence of race discrimination. See Jean-Baptiste v. KZ, INC., 442 F. Supp. 2d 652, 673 (N.D. Ind. 2006)(finding that the phrase “black people stink” was considered an explicit racial epithet and national origin slur that fell “on the more severe end of the spectrum” ); see also Doe v. Gladstone School District, Civil No. 3: 10-cv-01172-JE (D. Or. June 6, 2012)(Plaintiff was subjected to an array of offensive conduct including being told that “all black people stink”); see also Yamaguchi v. US Dept. of the Air Force, 109 F.3d 1475, 1478 (9th Cir. 1997)(the court found sexual harassment where the harasser made comments about the victim’s perfume). 

Use of racial epithets such as the “N-Word”, “sp*k” “b**ner” or “ch*nk”, other racist slurs.

Courts have also determined that certain racial epithets and other words are by themselves direct evidence of discrimination in the workplace. 

For example, the “N-word” has been found to be one of the worst epithets that can be uttered within the workplace or anywhere else. “Perhaps no single act can more quickly `alter the conditions of employment. . .’ than the use of an unambiguously racial epithet such as [the N-word] by a supervisor.” Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993). That epithet has been labeled, variously, a term that “sums up… all the bitter years of insult and struggle in America,” LANGSTON HUGHES, THE BIG SEA 269 (2d ed.1993) (1940), “pure anathema to African-Americans,” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir.2001), and “probably the most offensive word in English,” RANDOM HOUSE WEBSTER’S COLLEGE DICTIONARY 894 (2d rev. ed.2000). See generally ALEX HALEY, ROOTS (1976); HARPER LEE, TO KILL A MOCKINGBIRD (1960). Other courts have explained that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of … [the N-word] by a supervisor in the presence of his subordinates.” Spriggs, 242 F.3d at 185. 

Discussing the N-word, then-Judge Kavannagh noted that “[n]o other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013).  Perhaps no single act can more quickly “alter the conditions of employment and create an abusive working environment,” Meritor, 477 U.S. at 67, 106 S.Ct. at 2405, than the use of an unambiguously racial epithet such as [the n-word] by a supervisor in the presence of his subordinates. See Bailey v. Binyon, 583 F.Supp. 923, 927 (N.D.Ill.1984) (“The use of the word … automatically separates the person addressed from every non-black person; this is discrimination per se.”). The N-word slur is a “singularly odious epithet” that “reminds [Black Americans] of an unshakeable ‘otherness,’ an outsider status in the larger social, economic, and political dynamics of a given society.” Michele Goodwin, N***** and the Construction of Citizenship, 76 Temp. L. Rev. 129, 141 (2003).

Other epithets are clear evidence of race discrimination in the workplace. 

In Ortiz, the court found other racial epithets to be evidence of race discrimination. Employees used epithets such as “b**ner,” “taco eater,” “fucking b**ner,” “taco,” “bean eater,” “dumb Mexican,” “stupid Puerto Rican,” “dumb Puerto Rican,” “fucking Puerto Rican,” “Puerto Rican,” and “dumb Jew” to refer to Ortiz. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Of course all of these were enough to demonstrate a severe or pervasive hostile work environment. 

In Chuang, the court found that the plaintiff had enough evidence to show direct evidence of discrimination when a member of the Executive Committee, a decision-making body for the School of Medicine, Dr. Cross, reportedly stated in a meeting in 1989, just as Dr. Chuang was completing his prestigious five-year NIH Research Career Development Award, that “two Ch*nks” in the pharmacology department were “more than enough.” See Chuang v. University of California Davis, 225 F.3d 1115, 1128 (9th Cir. 2000).The court specifically noted that the term “ch*nk” was “an egregious and bigoted insult, one that constitutes strong evidence of discriminatory animus on the basis of national origin.” Id. 

 In LaRocca, deragotory epithets were hurled at the plaintiff so often that he did not remember them all such as “w*tback”, “sp*c”, “g*ok”, the “N-word”, “bean dip”, etc. LaRocca v. Precision Motorcars, Inc., 45 F. Supp. 2d 762 (D. Neb. 1999). Though he was Italian-American, the court found that he was the victim of this racism because of his national origin and the color of his skin. 

Insults directed at other people.

“[I]f racial hostility pervades a workplace, a plaintiff may establish a violation [], even if such hostility was not directly targeted at the plaintiff.” McGinest v. GTE Service Corp., 360 F.3d 1103 (9th Cir. 2004) (collecting cases). “If racial animus motivates a harasser to make provocative comments in the presence of an individual in order to anger and harass him, such comments are highly relevant in evaluating the creation of a hostile work environment, regardless of the identity of the person to whom the comments were superficially directed.” Id. See also Johnson v. Riverside Healthcare System, LP, 516 F.3d 759, 765 (9^th Cir. 2008) (“[D]iscriminatory conduct directed at an individual other than the plaintiff may be relevant to a hostile work environment claim”); Dominguez-Curry v. Nevada Transp. Dept., 424 F. 3d 1027, 1036 (9th Cir. 2005) (the district court erroneously disregarded evidence of discriminatory comments that [the harasser] directed to other women in the division”); Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1033-34 (9th Cir.1998) (“[R]acist attacks need not be directed at the complainant in order to create a hostile educational environment [under Title VI].” (citations omitted)); Reeves v. CH Robinson Worldwide, Inc., 525 F. 3d 1139, 1144 (11th Cir. 2008) (“It is well established that racially offensive language need not be targeted at the plaintiff in order to support a Title VII hostile work environment claim. . . . .The harassment that Walker experienced was ‘based on’ his race because the ‘race specific’ language that was used was particularly offensive to him as a black male, regardless of whom the language targeted”); Jennings v. Univ. of North Carolina, 482 F.3d 686, 695 (4th Cir.) (en banc) (“[S]exually charged comments in a team setting, even if not directed specifically to the plaintiff, are relevant to determining whether the plaintiff was subjected to sex-based harassment.”), cert. denied, ___ U.S. ___, 128 S.Ct. 247, 169 L.Ed.2d 147 (2007).

Racially based staffing decisions.

In Blackburn, nine employees of Western State Hospital (WSH) asserted that their employer had illegally taken race into account when making staffing decisions in response to patients’ race-based threats or demands. The trial court found that WSH managers issued a staffing directive that prevented African-American staff from working with a violent patient making threats over the course of one weekend in 2011. 

The State made staffing decisions that explicitly prevented certain employees from working on a particular ward over the course of one weekend due to their race. As examples, the trial court found that “the decision was made that [M.P.] should not have access to African[-] American staff” and Yates directed that a “white staff person needed to go to F-8,” instead of the African-American staff who were next on the pull list, 

Despite this race-based staffing directive, the trial court entered a verdict for the State and dismissed Employees’ employment discrimination claims. The court of appeals reversed the trial court and held that the State’s racially discriminatory staffing directive violated the Washington Law Against Discrimination (WLAD), RCW 49.60.180(3).

In Miles, the court found that a racial slur uttered by the person in charge of making employee evaluations and rehiring suggestions constituted direct evidence of discrimination. Miles v. M.N.C. Corp., 750 F.2d 867, 876 (11th Cir.1985); see also (when a manager stated “’you people’ can’t do a _____ thing right” was direct evidence of discrimination.” EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir. 1990).

In Chuang, aside from the racist terms used to describe him (discussed above) the court also found that Chuang’s credentials, along with his status as the sole non-caucasian in the department was indirect evidence of discrimination. Chuang v. University of California Davis, 225 F.3d 1115, 1128 (9th Cir. 2000). The court concluded that Dr. Chuang’s qualifications as a microbiologist and academic were extraordinary: he has developed a reputation as a leading AIDS researcher, published in prestigious journals, and received large amounts of funding from the NIH. Yet he was the only full-time faculty member in his department at Davis who had not received an FTE. It also happened that he was the only non-Caucasian. He was promised an FTE, but whenever one became available, it was assigned to someone else

Other stereotype-based discrimination.

Other stereotypes or offensive comments can be used to show that discrimination is sufficiently severe. In a particularly egregious case, the harasser made extremely offensive comments such as that Black men are “lazy” and “the scum of the earth” and that “black women[] ha[d] babies on welfare.” Smelter, 904 F.3d 1276, 1286 (11th Cir. 2018). In addition, the harasser remarked that she was unaware “they buried black people[] on Sunday[s].” Id.  Another harasser made at least one offensive remark, too, commenting that a group of black people she saw getting off of a bus looked like they were “chained together” and that she “wish[ed] she c[ould] send them … back… to Africa.” Id.

In State v. Zamora, the court found that a prosecutor committed race-based misconduct during jury selection by appealing to ethnic or racial bias and stereotypes, such as asking the jury if they felt safe, whether they locked their doors at night, and describing Latinx folks coming over the border by 100,000 per month, bringing crime and drugs. State v. Zamora, 512 P.3d 512, 520 199 Wash. 2d 698 (2022).

Another prosecutor was found to have committed prosecutorial misconduct when he inferred that Black witnesses were untrustworthy and asserted that Black witnesses were unreliable because there was a “code” that “`[B]lack folk don’t testify against [B]lack folk.'”  State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011).

More recently, in Henderson, a verdict was overturned in a civil case based on defense counsel calling the Black woman plaintiff “combative” and “confrontational” which “evoke the harmful stereotype of an “angry Black woman.” Henderson v. Thompson, No. 97672-4 (Wash. Oct. 20, 2022). The court found that “[t]his harmful negative stereotype affects the way others perceive and interact with Black women, and it can have significant negative social and interpersonal consequences for Black women, including influencing their experience and reasonable expression of anger.” The court noted: 

Defense counsel also directly contrasted Henderson with Thompson, describing Thompson as, “[b]y comparison, … intimidated and emotional about the process and—and rightly so, and provid[ing] … genuine and authentic testimony.” 3 VRP (June 6, 2019) at 1222. The direct contrast between defense counsel’s depiction of Henderson as “confrontational” and “combative” and her depiction of Thompson as “rightly” “intimidated” and “emotional” distorted the roles of plaintiff and defendant, casting Thompson—the person responsible for injuring Henderson— in the role of the victim to whom the jury owed more sympathy than the actual injured party. This invited the jury to make decisions on improper bases like prejudice or biases about race, aggression, and victimhood.

Additionally, during closing arguments, Thompson’s counsel alluded to racist stereotypes about Black women as untrustworthy and motivated by the desire to acquire an unearned financial windfall. Defense counsel argued that Henderson’s injuries were minimal and intimated that the sole reason she had proceeded to trial was that she saw the collision as an opportunity for financial gain.

Moreover, defense counsel relied on racist stereotypes about Black people and us-versus-them descriptions to undermine the credibility of Henderson and her witnesses. For example, defense counsel suggested that Henderson had probably asked her friends and family to lie for her, as evidenced by their shared use of a popular idiom—”life of the party”—to describe her.

Finally, Following the verdict, Henderson was asked to leave the courtroom before the jury returned. This occurred off the record. Henderson and her legal team recall this coming as a request from the jury. The judge however said it was her own regular practice to ask parties to leave the courtroom before the jury returned after a verdict and not a request by the jury. The Supreme specifically granted a new trial, not only because of the defense counsel’s behavior, but in addition because Henderson was excluded from the courtroom when the jury returned its verdict. 

Unfortunately, the above are just examples and there are countless ways that a harasser can engage in sexual harassment and create a hostile work environment based on sex. If you are experiencing any of the above, or a combination of multiple of the above harassment at work that you believe is severe or pervasive, don’t be afraid to reach out to an experienced sexual harassment attorney that can help you document these problems, or if necessary, file a lawsuit on your behalf. Don’t wait until it is too late, or until you are fired, get help now! Do something to make your office a better place for you and for anyone else that might be in the same situation

Colin McHugh is an experienced sexual harassment attorney and has represented survivors of sexual harassment and other employment discrimination cases in Washington, Oregon, and federal court, against high-profile employers including large corporations and governmental entities. For more information, go to his bio here.