Opinion
November 13, 1980
Present — Cardamone, J.P., Simons, Hancock, Jr., Callahan and Moule, JJ.
Petition unanimously granted, without costs, order reversed and complaint dismissed. Memorandum: Complainant charged respondent, his employer, with unlawful discrimination in denying him equal terms, conditions and privileges of employment because of race and color. After a hearing the Commissioner of Human Rights issued an order which found that respondent discriminated against complainant because of race and color in violation of the Human Rights Law by permitting a racial slur. The Human Rights Appeal Board affirmed the decision and order of the commissioner. The issue presented is one that we have considered in the past; namely, whether the use of ethnic slurs and insults by a superior without the knowledge or acquiescence of the employer is an unlawful discriminatory practice in violation of the Human Rights Law. We find that it is not (State Div. of Human Rights v Henderson, 49 A.D.2d 1026). The record supports the findings of the commissioner, as affirmed by the appeal board, that in an argument over work assignments between complainant and his supervisor, the supervisor used a racial slur against complainant; that respondent's supervisor of labor relations conducted an investigation of the incident, in which he interviewed witnesses; and that the conclusion of the investigation was not to sustain the charge. The evidence does not, however, support the finding that respondent discriminated against complainant in terms, privileges or conditions of employment by permitting a racial slur. The conducting of the investigation evidences that respondent did not tacitly condone the incident. That the investigation resulted in a conclusion different from that of the commissioner does not allow a finding that respondent permitted the racial slur. An isolated insult of an employee by his supervisor is insufficient proof to find that the employer discriminated because of race and color, without further evidence the employer condoned or ratified the use of such language (see Silver v KCA, Inc., 586 F.2d 138; Friend v Leidinger, 446 F. Supp. 361, affd 588 F.2d 61).