Racial Harassment Should be Viewed from Perspective of Reasonable Victim of Same Race

The plaintiff in this case was an African- American who worked for GTE (Verizon) for 23 years.???? ?He? alleged? a? pattern? of? both discriminatory? employment? actions? and workplace racial harassment, including name- calling and racist graffiti.? ?He also alleged retaliation.?? ?The district court granted the employer?s motion for summary judgment as to all claims. ?The Ninth Circuit reversed except as to ?the ?retaliation ?claim.?? ?On ?the ?hostile ?work environment claim, the court held that whether an environment is objectively racially hostile must be?? determined?? from?? the?? perspective?? of?? a reasonable? ?person? ?of? ?the? ?same? ?race? ?as?? the plaintiff. ?The court concluded that references to the plaintiff as a ?drug-dealer? had racial overtones.?? ?The? fact? that? the? supervisor? used racist language to people of all races was no defense. ?His harassment of a white co-worker for associating with black employees was also probative evidence of unlawful motivation. The opinion reviews much of the law in the Ninth Circuit?? on?? harassment?? in?? a?? comprehensive fashion. It reiterates that an employer must take some form of disciplinary action against a harasser.? ?It required the employer to take affirmative action to ensure that the harassment was not reoccurring. On the failure to promote claim, the court recognized that after Costa, an employee? ?need?? prove?? only?? a? ?genuine?? issue whether the employer?s action was due in whole or in part to discriminatory intent. ?The employee may use any combination of direct and circumstantial evidence, including, if the plaintiff so chooses, pretext evidence generated by the McDonnell-Douglas Burdine framework.? ?The opinion contains useful language on? ?proving pretext.?? Judge O?Scannlain dissented as to the reversal of summary judgment on the failure to promote claim and the reasoning of the majority in? reversing? the? sexually? hostile? work environment? ?claim.?????? The? ?dissent? ?drew? ?an incorrect distinction between disparate treatment and hostile environment cases regarding the admission of untimely background evidence. Judge O?Scannlain found the evidence of pretext insufficient.? ?McGinest v. GTE Serv. Corp., No. 01-57065? (3/11/04;? Paez,? Reinhardt; O?Scannlain)