In Missouri, in order to make a claim for discriminatory harassment, the individual has to be able to show four things:
- The individual is a member of a protected class (race, color, religion, national origin, ancestry, sex, disability, or age);
- The individual suffered harassment related to their protected class;
- The harassment occurred because the individual belonged to the protected class; and
- A “term, condition, or privilege” of the individual’s employment was affected by the harassment.
The question faced in a recent Missouri appellate decision is whether the fourth requirement can be met even in a scenario where someone has not suffered from one specific act that caused economic harm. Fuchs v. Dept. of Revenue, WD77155 (Mo. App. W.D. Aug. 26, 2014). Hit the jump for the details…
In Fuchs, an employee suffered from cerebral palsy that left her wheelchair-bound and reliant on assistance when using the restroom. The employee claimed that the employer had participated in a course of harassment that was caused by her disability, filed a claim with the Missouri Commission on Human Rights, and then brought suit. During the initial fact-finding period prior to the trial (known as “Discovery”), the employee admitted that she had “never been suspended, had her pay docked, salary changed, benefits reduced, job duties or titles changed, or been required to use extra leave time by the Employer due to her disability.” The trial court then held that because she could not point to a single event that caused her economic harm, the individual could not prove that a “term, condition, or privilege” of her employment had been affected and dismissed the suit. The employee then appealed the dismissal.
On appeal, the court noted that there are two types of discriminatory harassment claims: those where an employer follows through on a threat to alter a term or condition, and those where threats may be made but are not carried out. In the latter situation, an individual can still prove discriminatory harassment if they can show that the treatment was sufficiently severe or pervasive to alter a term or condition of the employment and create an “abusive working environment.” The court then canvassed the employee’s allegations to see if they were sufficient claims of “discriminatory intimidation, ridicule, and insult.” The employee alleged that her supervisor suggested that she “realize [she is] broken and go on disability,” repeatedly questioned her about her restroom use and placed unique restrictions on her access to the restroom, and intimidated any coworkers who provided the employee with assistance. The court held this was a sufficient allegation of discriminatory harassment to proceed to trial where the jury would be responsible for determining whether the harassment was sufficiently severe or pervasive. The court therefore reversed the decision of the lower court and sent the case back for trial.
Fuchs is an important reminder that claims of discrimination and harassment do not turn just on whether there has been a specific economic harm done to the individual. Rather, courts should look at the entire course of conduct to see whether it was 1) motivated due to some protected class and 2) severe and pervasive enough to create an abusive work environment. Obviously this is a very fact-intensive process so if you feel you have been discriminated against you should contact an expert for assistance. Missouri NEA members should contact their UniServ Director immediately if they believe they are the subject of discrimination.