As SCOTUS declines racial slur case, civil rights legal professionals say they’ll hold pushing

Odds were always good against Robert Collier, former Black’s former hospital assistant, who had petitioned the US Supreme Court to determine whether his exposure to the most racially offensive word in American slang was dehumanizing enough to justify him was to sue the hospital for creating an enemy job.

After all, it is rare for the Supreme Court to grant a review of a case – and Collier’s would have presented the court with unique challenges. He alleged that Parkland Hospital in Dallas had failed for months to remove graffiti of the N word engraved on the wall of an elevator that he and other black workers used to access the hospital cafeteria. Collier’s attorneys presented his case as an opportunity for the Supreme Court to determine whether this disclosure alone was sufficient to bring Collier’s claim under Title VII of the Civil Rights Act to trial.

The attorneys at the Carter Arnett Hospital gave the Supreme Court numerous reasons for refusing to review in their brief counter-argument. Parkland said it was not clear that Collier, who was fired for insubordination after refusing a supervisor’s order to work in a specific area of ​​the hospital, had ever reported the graffiti to staff officials. The hospital also denied Collier’s claim of a split between federal counties over whether a single use of the n-word makes a job hostile, arguing that appeals courts reached different conclusions based on the unique facts of each case.

On Monday, the Supreme Court followed the predictable course and rejected Collier’s petition. However, according to Collier’s attorney Brian Wolfman of the Georgetown Law Appellate Courts Immersion Clinic and two lawyers representing Collier amici, that doesn’t mean the Supreme Court petition was unsuccessful.

On the contrary, Wolfman and Amicus Counsel told me Monday that civil rights lawyers have good reasons to push for a Supreme Court review, even though the judges are unlikely to take cases.

“Our petition sparked change,” Wolfman said in an email. “(It) has advanced the cause of racial justice in the workplace by showing that what appears tolerable or even legally routine to some employers and even to some courts should be viewed as anything but tolerable or routine.”

Collier’s petition, according to Wolfman and Amicus Counsel, has managed to raise awareness in three crucial constituencies: the public, the civil rights community and the judges themselves.

The petition received a lot of media coverage, including my story in February about the judges calling for a response from the hospital. The AP and NBC subsequently reported on Collier’s case, and all broadcast networks reported on Monday the Supreme Court’s decision not to allow scrutiny. At the very least, such reporting should get employers like Parkland to act quickly when employees say they are subject to the N word.

The petition also aroused the interest of civil rights activists. The Howard University School of Law’s Human and Civil Rights Clinic, the NAACP Legal Defense & Education Fund, and other racial justice organizations and scholars filed amicus briefs in support of Collier’s request for Supreme Court review.

“Now we’re watching the problem,” said Howard professor Tiffany Wright. “We are ready to step in.”

Amici can make a huge difference in a case like this, said Wright, a former judicial clerk Sonia Sotomayor. Collier had testified that his work performance was not significantly affected, although he regularly saw the nickname engraved on the wall of the elevator. His stoicism, Wright said, is extraordinary – and she wanted the judges to know that. “After living black,” she said, “I know that it is impossible not to compromise your performance.” (The Parkland Hospital attorney did not immediately respond to requests for comment on denying certification.)

To emphasize this point, the Howard Letter argued the bold position that any use of the n-word can justify an assertion of Title VII. “Even a single invocation,” the letter says, “can be so traumatic and dehumanizing that employment conditions change negatively.” The letter from legal and social scientists who examined the effects of the n-word agreed that even an allegedly isolated use of the epithet can constitute racial discrimination.

That brings me to the most important goal an unsuccessful Supreme Court petition can achieve: to get the judges’ attention. The Supreme Court, Wolfman said, has never heard a case of racial harassment in the workplace. By highlighting the uncertainty in the lower courts about the impact of the n-word on the workplace, the Collier petition brought a recurring problem to the attention of the Supreme Court.

Civil rights activists, Wright said, have a long game to play in the Supreme Court. She cited the example of qualified immunity for government officials. The judges turned down a dozen qualified immunity cases before agreeing last year to hear Taylor v Riojas over an inmate’s allegations that correctional officers violated his 8th Amendment rights, by locking him in a cell contaminated with human waste for six days.

Wright said she believed that under the pressure of a steady stream of petitions and amicus briefs, judges finally granted review of a qualified immunity case – albeit not one with police officers.

Collier Amicus attorney Mona Tawatao of the Equal Justice Society agreed, referring to the Supreme Court’s long road to marriage equality. “Unfortunately, given the continued use of the n-word as a bow in the workplace, this issue will no doubt come back to the Supreme Court,” she said. “The court is not and should not be impervious to the development of public opinion.”

This is a small consolation for Robert Collier today, who cannot blame a jury for having to look at the N-word engraved in an elevator wall at work on the way to lunch. But Collier’s attorney, Wolfman, said he was trying to look ahead.

Together with Colliers Amici, he said: “(We) will continue the fight for a more just and just workplace.”

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