In my experience, the prohibitions on “hostile work environment” and “harassment” are some of the most misunderstood by individuals not in the legal field. Unlike many areas of law where archaic latin terms are used to describe legal ideas (“mens rea” or “habeus corpus” anyone?), both of these take normal everyday words and press them into service as specific legal terms. Therefore, while we can all understand when someone is feeling harassed or that their workplace is hostile, determining when legal rights have been violated is far more complex. Hit the jump for a look at four (count ’em four!) cases that investigate the gamut of “hostile work environment” and “harassment” law.
The firs thing that many people are surprised to learn is that it is not just enough for a supervisor to be a jerk to create a legal claim. Both “harassment” and “hostile work environment” spring from laws prohibiting discrimination, and therefore they only apply to the “protected categories” where discrimination is barred. The categories protected by the federal Civil Rights Act of 1964 are race, color, religion, national origin, age, and sex. Additionally, the Age Discrimination in Employment Act and the Americans with Disabilities Act have included age and disability status, respectively, as protected classes. Therefore, legal action is available only if your supervisor is creating a “hostile work environment” because of one of these protected classes (and you can prove it).
Often, to bring a claim, the actions that support the claim must be overtly discriminatory, such as the allegations from a recent New York federal court decision. See Pierce v. Gareb Shamus Enter., Inc., 2013 U.S. Dis. LEXIS 47607 (E.D. N.Y. 2013) (hat tip to the Employment & Labor Insider for bringing this case to my attention). In Pierce, the court reviewed 13 different circumstances where the plaintiff was referred to as an “old guy” who was not “hip or cool” and was “too old to understand” pop culture or technology. While the court specifically noted that no single one of these situations alone would be sufficient to claim discrimination, the totality of the evidence over the years showed a practice that could be sufficiently “continuous and concerted” to rise to the level of a hostile work environment. Therefore, the court allowed the plaintiff to take his claims to trial.
While the statements in Pierce were all directly related to his protected class, that need not necessarily be the case so long as the rationale behind the statements or actions is related to a protected class . See Hall v. Chicago, 713 F.3d 325 (7th Cir. 2013) cert. denied, 538 U.S. 999 (2013) (hat tip to Employment Law Matters). In Hall, a female plumber alleged that her supervisor created a hostile work environment based on her gender. The division that the plumber worked in was composed of 17 other male plumbers and one female secretary. From the first day of her work, she was segregated from the other plumbers and given menial tasks to complete, including repeatedly filing the same set of papers and watching a set of videos over and over again. Additionally, her supervisor prohibited any of her coworkers from speaking to her and verbally reprimanded individuals who associated with her. While the court noted that most of the conduct alleged did not have a gender-specific aspect, they relied on a few instances of statements by the supervisor relating to slapping “that woman” to determine that the entire course of conduct could be found to be motivated by gender. Therefore, a hostile work environment claim can be made even on non-explicitly discriminatory behavior as long as it can be linked to one of the protected classes.
In addition to the continuous and pervasive types of hostile work environment in Pierce and Hall, a claim can be made on a single incident of harassment, if that single incident is sufficiently severe. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013) (hat tip to Employment Law Blog). In Ayissi-Etoh, an African-American man applied for and received a promotion at his job to a team leader. Unlike all of the other caucasian individuals who had been promoted to team leader, the employee was the only one not to receive a raise along with his promotion. When the employee brought this discrepancy to the attention of his supervisor he was allegedly told “For a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot of money.” The employee then pursued the matter with his supervisor’s supervisor and, after the conversation became heated, was allegedly told to “Get out of my office n****r.” The court held that the use of the racial epithet, on its own, could be enough for a jury to conclude that a hostile work environment existed and, when combined with the “young black man” statement, there was more than enough evidence for the case to proceed to trial.
One last element of a claim for hostile work environment that should be remembered is that in many circumstances these claims can be brought even if the alleged perpetrator is part of the same protected class as the victim. See E.E.O.C. v. Boh Bros. Constr. Co., 2013 U.S. App. LEXIS 19867 (5th Cir. 2013) (hat tip to The Employer Handbook). In Boh, a male construction worker suffered ongoing verbal and physical harassment by his supervisor because he did not conform to the supervisor’s idea of how a man should act. The worksite in general was a very vulgar place but the worker was a specific target of his supervisor, being called “p***y,” “princess,” and “f****t” repeatedly throughout the day. Additionally, the supervisor would simulate anal intercourse with the worker when he bent over and repeatedly exposed his penis to the worker. After a jury trial in the worker’s favor, the employer appealed and initially prevailed in having the jury verdict overturned. However, upon a rehearing of the appeal by the entire appellate circuit, the court reinstated the jury verdict. The court found that belittling someone because they do not conform to supposed gender-norms is a type of sex discrimination, known as sex-stereotyping, regardless of who is doing the discrimination. Additionally, the court found that the fact that the worker was objectively very masculine did not diminish the supervisor’s subjective intent to discriminate based on sex-stereotyping.
While hostile work environment claims are often misunderstood, hopefully this quartet of cases have given some guidance for what to look for:
- A series of connected and ongoing statements or actions related to one or more protected classes.
- A series of connected and ongoing statements and actions that are not related to a protected class but where there is evidence that the entire course of conduct is motivated by a protected class.
- A single discriminatory event can suffice if it is sufficiently severe or outrageous.
- A claim is not barred just because the alleged perpetrator is in the same protected class.
If you feel you are being discriminated against, please contact a qualified attorney as soon as you can. Missouri NEA members should contact their UniServ Director / Union Representative for guidance on appropriate steps to take.