Carfagno made manifest, by word and deed, that racial bias motivated his selection of the assault victims in this case. See Adams v. Commonwealth, 33 Va. App. 463, 471, 534 S.E.2d 347, 351 (2000).
Carfagno used the term “black bitches,” “niggers,” and “black nigger bitch” in addressing the two women, with whom he had no prior relationship.
After using a racial epithet to initiate a conversation with the women, Carfagno proceeded to assault Smith and her daughter. Carfagno continued to hurl racial epithets at the women during the assault, which was unprovoked. Carfagno v. Commonwealth 576 S.E.2d 765 (Va. Ct. App. 2003)
“Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.” Holding that mere utterance of a racial epithet that engenders offensive feelings in an employee is insufficient to violate Title VII. Meritor Savings Bank v. Vinson 477 U.S. 57 (1986)
Holding that managers’ racial jokes, racially derogatory acts, and racial epithets created a hostile work environment and were part of the same actionable hostile environment claim. National Railroad Passenger Corporation v. Morgan 536 U.S. 101 (2002)
To support his claims of a hostile environment, Morgan presented evidence from a number of other employees that managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets. Id., at 1013. Although many of the acts upon which his claim depends occurred outside the 300 day filing period, we cannot say that they are not part of the same actionable hostile environment claim. National Railroad Passenger Corporation v. Morgan 536 U.S. 101 (2002)
Applying racial harassment standards in sexual harassment case, and citing, among others, Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) (“Mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” does not sufficiently alter terms and conditions of employment to create Title VII violation), cert. denied, 406 U.S. 957
In thus holding that environmental claims are covered by the statute, we drew upon earlier cases recognizing liability for discriminatory harassment based on race and national origin, see, e.g., Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert. denied, 406 U.S. 957 (1972); Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506 (CA8), cert. denied sub nom. Banta v. United States, 434 U.S. 819 (1977), just as we have also followed the lead of such cases in attempting to define the severity of the offensive conditions necessary to constitute actionable sex discrimination under the statute. See, e.g., Rogers, supra, at 238 (“[M]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not sufficiently alter terms and conditions of employment to violate Title VII). See also Daniels v. Essex Group, Inc., 937 F.2d 1264, 1271-1272 (CA7 1991); Davis v. Monsanto Chemical Co., 858 F.2d 345, 349 (CA6 1988), cert. denied, 490 U.S. 1110 (1989); Snell v. Suffolk County, 782 F.2d 1094, 1103 (CA2 1986); 1 B. Lindemann P. Grossman, Employment Discrimination Law 349, and nn. 36-37 (3d ed. 1996) (hereinafter Lindemann Grossman) (citing cases instructing that “[d]iscourtesy or rudeness should not be confused with racial harassment” and that “a lack of racial sensitivity does not, alone, amount to actionable harassment”). Faragher v. Boca Raton 524 U.S. 775 (1998)
The Supreme Court also held that the penalty-enhancement statute was unconstitutionally overbroad. It reasoned that, in order to prove that a defendant intentionally selected his victim because of the victim’s protected status, the State would often have to introduce evidence of the defendant’s prior speech, such as racial epithets he may have uttered before the commission of the offense. This evidentiary use of protected speech, the court thought, would have a “chilling effect” on those who feared the possibility of prosecution for offenses subject to penalty enhancement. See id. at 174, 485 N.W.2d at 816. Finally, the court distinguished antidiscrimination laws, which have long been held constitutional, on the ground that the Wisconsin statute punishes the “subjective mental process” of selecting a victim because of his protected status, whereas antidiscrimination laws prohibit “objective acts of discrimination.” Id. at 176, 485 N.W.2d at 817. Wisconsin v. Mitchell 508 U.S. 476 (1993)
Holding unconstitutional ordinance that prohibited symbols or displays that insult or might provoke violence “on the basis of race, color, creed, religion, or gender;” because the ordinance proscribed “messages of racial, gender, or religious intolerance,” but not other messages that insult or might provoke violence, it constituted impermissible content discrimination. In its practical operation, moreover, the ordinance goes even beyond mere content discrimination to actual viewpoint discrimination. Displays containing some words — odious racial epithets, for example — would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or gender — aspersions upon a person’s mother, for example — would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers’ opponents. One could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules. R.A.V. v. St. Paul 505 U.S. 377 (1992)
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