As a labor and employment attorney, I am often asked by potential clients if they have a viable claim against their employer for being subjected to a “hostile working environment.” And why would they not? Many people feel they are subjected to difficult working conditions, and the word “hostile” is a loaded term, perceived to be attention grabbing and capable of capturing interest. Although it sounds like an all-encompassing claim, the law has very particular requirements to satisfactorily allege that one was, indeed, subjected to an unlawful, hostile working environment.
“Hostile work environment” is not specifically enumerated as a possible claim under Title VII[1] or Maryland’s Fair Employment Practices Act[2], (“FEPA”). Rather, a “hostile working environment” is a legal term of art that both the United States Supreme Court[3] and the Maryland Court of Appeals[4] have held is actionable under Title VII. Title VII makes it unlawful for an employer to discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment because of an individual’s immutable characteristic (e.g., sex, gender, race, color, etc.), which are enumerated in the statute.[5] “Since an employee’s work environment is a term or condition of employment, Title VII creates a hostile working environment cause of action.[6]” However, Title VII does not protect all forms of behavior that may create an unpleasant place for one to work.
Ultimately, the issue boils down to whether they were subjected to conduct and behavior in the workplace that Title VII is designed to protect. This is where the “jerk boss” or “rude coworkers” rule comes in to play.[7] “Title VII was not intended to eliminate every instance of vulgarity, rudeness, or insensitivity”[8] in the workplace, so not all instances of objectionable behavior are actionable under Title VII. For example, in the Fourth Circuit:
- Rude or callous behavior is not necessarily actionable under Title VII;[9]
- “Condescending” or “belittling behavior” (e.g., tone of voice, facial expressions, mannerisms, etc.) and personality conflicts, standing alone, are not generally actionable under Title VII; and
- Comments concerning one’s personal hygiene, appearance, or the qualities of one’s children premised upon inaccurate assumptions about race (a protected characteristic under Title VII)—although crude and ignorant—are not covered under Title VII.[10]
In order to have an actionable claim for an unlawful hostile working environment under Title VII and Maryland’s FEPA statute, one must demonstrate that the workplace harassment, based on the protected characteristic, was (1) unwelcomed; (2) based on the protected characteristic; (3) subjectively and objectively severe or pervasive enough to alter the conditions of employment and create an abusive atmosphere; and (4) imputable to the employer.[11] Generally speaking, prongs one and two are relatively easy to establish, and the courts will also often assume that he or she subjectively perceived their work environment to be abusive.[12] Courts, therefore, often focus on whether the abusive and harassing conduct was objectively and sufficiently severe or pervasive and that the aggrieved conduct was imputable to the employer.
In considering a hostile work environment claim, the Fourth Circuit evaluates all of the circumstances surrounding the conduct, considering: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.[13] The perspective the court takes is that of a “reasonable person” in the potential client’s position.[14] However, the harassment need not be both severe and pervasive; thus, the more severe the conduct, the less pervasive it needs to be.[15] In fact, at least one court in the Fourth Circuit has found that a single incident of harassment that is sufficiently severe can give rise to employer liability.[16] Additionally, courts in the Fourth Circuit have held that harassing behavior by an employee’s direct supervisor, who has significant authority over the employee’s day-to-day duties and possesses the ability to influence her career, to be objectively more severe than the same behavior by a fellow employee.[17]
Lastly, a potential employee’s complained of harassment must be imputable to his or her employer to establish liability.[18] An employer is liable for unlawful harassment by the employee’s supervisor or co-worker only “if [the employer] knew or should have known about the harassment and failed to take effective action to stop it.”[19] Once an employer has notice, then it must respond with corrective action designed to end the complained of workplace harassment.[20]
While it may oftentimes be extremely stressful to work in a difficult environment, as can be seen, there is sometimes a divide between common notions of a hostile work environment and whether the courts will deem it to give rise to a cause of action. Because every case is different, careful analysis is necessary to evaluate the merits of whether a case falls under the “jerk boss” rule or is an actionable claim under Title VII.
[1] See 42 U.S.C. § 2000e–2(a) (Title VII of the Civil Rights Act of 1964).
[2] See Md. Code Ann., State Govt., § 20–606(a).
[3] See Meritor v. Sav. Bank FSB v. Vinson, 477 U.S. 57, 64 (1986).
[4] See Manikhi v. Mass Transit Admin., 360 Md. 333, 758 A.2d 95, 103 (Md. 2000) (stating that the United States Supreme Court held that the language of Title VII is not limited to “economic” or “tangible” discrimination, but that it encompasses protection for employees from hostile environment discrimination); see also, Haas v. Lockheed Martin Corp., 396 Md. 469, 914 A.2d 735, 743–44 (Md. 2007) (stating that Title VII is the federal analogue to FEPA, and Maryland courts routinely seek guidance from federal cases when determining liability under its anti-discrimination statute).
[5] See 42 U.S.C. § 2000e–2(a)(1).
[6] See EEOC v. R & R Ventures, 244 F.3d 334, 338 (4th Cir. 2001).
[7] See also Hostile Work Environment: Overused and Misunderstood, https://www.jgllaw.com/blog/hostile-work-environment-overused-misunderstood.
[8] Bonner v. Payless Shoe Source, 139 F.3d 887 (Table) (4th Cir. 1998).
[9] See EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
[10] See Linton v. Johns Hopkins Univ. Applied Physics Laboratory LLC, 2011 WL 4549177, at *1, *12 (D. Md. Sept. 28, 2011).
[11] See Taylor v. Anne Arundel County, 2015 WL 134197, at * 1, *9 (D. Md. Jan. 8, 2015).
[12] See Williams v. Silver Spring Volunteer Fire Dept, 2015 WL 237146 , at *1, *9 (D. Md. January 16, 2015) (citing Ziskie v. Mineta, 547 F.3d 220, 227 (4th Cir. 2008)).
[13] See Sunbelt Rentals, 521 F.3d at 313.
[14] See Williams, 2015 WL 237146 at *9.
[15] See id. (citing Reed v. Airtran Airways, 531 F. Supp. 2d 660, 669 (D. Md. 2008)).
[16] See Rohan v. Networks Presentation LLC, 192 F. Supp. 2d 434. 437–38 (D. Md. 2002) (holding that a single incident of harassment was sufficiently severe when a plaintiff was forced by management to reveal “unusually intimate and personal” details about her life to co-workers). See also infra n. 17.
[17] See Emond v. Corr. Med. Servs., Inc., 2011 WL 2712749, at *1, *7 (D. Md. July 12, 2011). See also, Sunbelt, 521 F.3d at 318 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 803 (1998)). In Williams v. Silver Spring Volunteer Fire Department, supra n. 11, the Court denied the Defendant’s motion for summary judgment and allowed the matter to proceed to trial because Plaintiff’s allegations of sexual harassment were sufficient enough to allow a reasonable juror to conclude that the discriminatory treatment she was forced to endure was so severe or pervasive to give rise to a hostile working environment claim. There, the plaintiff, a young woman, testified to multiple instances of sexual advances over a protracted period of time made by one of her male co-workers who was also, in some capacity, her supervisor. In addition, the plaintiff testified about a single incident during a fire department board meeting where the complained of co-worker straddled her waist and ground his pelvis on her. Furthermore, her co-worker publicly shamed the plaintiff, and she reported his behavior to their superiors. The Williams Court held that the incident where the complained of co-worker straddled the plaintiff could, on its own, allow a reasonable juror to conclude that the incident was so degrading and humiliating that it would satisfy the third prong of a hostile working environment claim. Also, the court noted that the severity of the co-worker’s conduct was exacerbated by the fact that he was her supervisor.
[18] See Sunbelt Rentals, 521 F.3d at 319.
[19] See id.
[20] See id.
