Wednesday, July 25, 2018

Ayissi-Etoh v. Fannie Mae: Judge Kavanaugh on the N-word

In the questionnaire that Judge Brett Kavanaugh completed for his nomination to the Supreme Court, he identified the EEO case of Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013), as one of the ten most significant cases in which he participated. In this racial harassment case, Placide Ayissi-Etoh alleged that a company executive subjected him to unlawful racial harassment, which included calling him the n-word. The lower court concluded that the alleged conduct was not enough for Ayissi-Etoh to have reasonably perceived his work environment as hostile. The three-judge panel unananimously reversed. And Kavanaugh wrote a separate concurrence to emphasize that even a single occurrence in which someone is called the n-word can result in unlawful racial discrimination.  He explained 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."

Kavanaugh's selection of this case as one of the most significant of his career is an interesting choice. This case breaks no legal ground, and Kavanaugh's concurrence merely underscores a point raised in the main opinion, which he also joined. Kavanaugh nonetheless felt compelled to write separately to discuss the historical and social context in which discrimination claims must be evaluated. As I noted in a prior post, Kavanaugh's concurrence in Ayissi-Etoh is particularly notable in the #MeToo era. Kavanaugh may not always agree with the legal arguments advanced by litigants, but he is able to empathize and place himself in someone else's shoes -- which just may be the most important qualification to serve on the Supreme Court.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.