How have federal circuit courts differed on whether a single utterance of the N‑word creates a hostile work environment under Title VII?
Executive summary
Federal appellate courts are split: several circuits have held that a single, egregious utterance of the N‑word can be enough to send a hostile‑work‑environment Title VII claim to a jury, while others treat a lone slur as a non‑actionable “mere utterance” absent additional severe or pervasive conduct [1] [2]. The dispute produced repeated invitations to the Supreme Court and high‑profile opinions—both in published rulings and concurrences—yet the Court has so far declined to resolve the split, leaving uneven protections across circuits [3] [2].
1. The pro‑single‑utterance camp: Third, Fourth, and like decisions
The Third and Fourth Circuits have squarely held that one use of the N‑word—or a similarly offensive slur—can be “extremely serious” and therefore sufficient to defeat summary judgment on a hostile‑work‑environment claim, a rule that permits juries to weigh whether a single utterance altered the conditions of employment [1] [2]. Other appellate panels and commentators likewise identify a cluster of circuits (including some panels in the First, Second, Ninth and D.C. Circuit writings) that have recognized circumstances in which a solitary, supervisor‑directed slur is actionable, emphasizing the word’s particular historical gravity [4] [5].
2. The “mere utterance” majority: Fifth, Sixth, Seventh, Eighth, Tenth (historically)
For years courts in the Fifth, Sixth, Seventh, Eighth, and Tenth Circuits routinely found that a single use of the epithet, standing alone, was a non‑actionable “mere utterance” and insufficient as a matter of law to establish a hostile environment under the Supreme Court’s “severe or pervasive” standard [6] [2]. That line of precedent meant that in much of the country a plaintiff alleging only one spoken slur often could not even reach a jury [6].
3. Recent movement in the Fifth Circuit and fracture within circuits
The Fifth Circuit—long associated with the “mere utterance” approach—shifted in Woods v. Cantrell, where a panel held that a supervisor’s one‑time use of the N‑word in front of subordinates could preclude dismissal and justify remand, marking the first clear Fifth Circuit ruling to allow a single utterance to proceed in that context [7] [8]. Legal analysts call Woods a significant departure and note the opinion avoided announcing a fixed test, instead recognizing context and identity of the speaker (supervisor versus coworker) as determinative [7] [8].
4. Role of the speaker, context, and procedural posture
Across circuits the divide often hinges on who said the word (supervisor vs. co‑worker), the context (directed at the plaintiff or incidental), and the procedural posture (motion to dismiss vs. summary judgment). Several courts have been willing to treat a supervisor’s one‑time invocation of the slur as potentially altering employment conditions, even where peer‑to‑peer, isolated comments were rejected—an analytical nuance repeatedly emphasized in appellate opinions and practice pieces [4] [9] [8].
5. High court signals, but no definitive resolution
Petitions and briefs urged the Supreme Court to resolve the split; Justice Kavanaugh’s earlier D.C. Circuit concurrence in Ayissi‑Etoh argued that a single utterance could by itself establish a hostile environment, signaling that at least some justices see the issue as legally significant [2]. The Court, however, declined to take up Collier’s petition in 2021, leaving the circuit split intact and enforcement dependent on geography and panel composition [3] [2].
6. Practical and doctrinal implications
The circuit disagreement produces real‑world asymmetry: plaintiffs in some regions can have a jury decide whether a single slur was sufficiently demeaning, while in others such claims are dismissed as a matter of law; employers and litigants therefore face uncertainty and forum‑dependent risk assessments [6] [3]. Commentators and plaintiffs’ counsel urge uniform recognition of the N‑word’s uniquely dehumanizing meaning, while defense practitioners point to Supreme Court precedents warning against treating every offensive epithet as legally actionable—an unresolved tension reflected in the jurisprudential patchwork [5] [10].