Good post by Jonathan B. Wilson defending Justice Brown’s opinion in Aguilar v. Avis Rent A Car System, although, if anything, Wilson concedes too much to Brown’s critics. Wilson writes, “[n]o one wants to encourage or permit the use of racial epithets in the workplace.” Well, I certainly don’t want to encourage it, and I wouldn’t permit it in my workplace (if I owned or managed a workplace), but I don’t agree that it’s wrong for the government to ever “permit” it. First, I can easily see circumstances where the use of racial epithets in the workplace, not directed at a particular party, would be privileged by the First Amendment. Moreover, current federal law requires a hostile environment claimant to prove a “severe and pervasive” climate of hostility. A singular use of a racial epithet by a coworker is almost certainly not sufficient to satisfy that standard (though there is a New Jersey case, decided under more expansive state law, that holds that a single use of racial epithet did create an actionable hostile enviroment.)
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