While in law school, I was often asked what area of law I was interested in practicing. Inevitably someone would ask me if I was interested in becoming a family law attorney. My almost instantaneous response was, “Oh no! Too much drama!” Instead, I chose to practice employment law – an area that I naively believed would have fewer emotions involved than Family law.
But it turns out I was wrong.
Right up there on the things-that-mak
But do you really work in an illegal hostile work environment? Most of the time, the answer is “No.”
The first thing everyone needs to know is that you do not have a claim based on “hostile work environment” alone. It is not a standalone cause of action.
This is what I call the “Jerk Boss Rule”—while it is probably not good business sense for your boss (or coworker) to be a jerk, it is not necessarily unlawful. Title VII (the federal law prohibiting workplace discrimination) and its state and local counterparts[1] do not guarantee a workplace free of troubles. Instead, these statutes prevent employers from taking discrimination motivated by the employee’s status in a protected class: race, gender[2], national origin, color, religion, pregnancy,[3] disability,[4] or because of age.[5] So, the actions of the “jerk boss” that imposed an adverse employment action against the employee must tie back to the employee’s status in one of these protected classes.
In turn, the law only recognizes the existence of a hostile work environment when the hostility is founded on the employee’s status in a protected class. In order to meet the first legal standard of proving a hostile work environment, an employee must prove that: (1) the harassment was unwelcome; (2) was based on the employee’s status in a protected class; (3) the harassment was “sufficiently severe and pervasive enough to alter the conditions of [his or] her employment and create an abusive atmosphere”; and (4) is imputable to the employer.[6]
The first factor in this test is usually pretty easy to meet. If you’re complaining about what’s going on at work, it’s most likely behavior that you do not welcome. It’s the next several areas where things get tricky.
The second step requires an employee needs to show that the harassment was linked to the employee’s status in the protected class. In other words, if your response to the question “Why do you believe your boss treated you this way?” is anything other than “it’s motivated by my race, gender, national origin, color, religion, pregnancy, disability, or because of age,” you might not have the foundation on which to bring a hostile work environment claim.[7] So in this respect, what your boss does to you may not be as important as why your boss treats you a certain way or took certain actions against you.
The third factor is often where things fall apart. It is not enough that the employee subjectively perceives the environment as hostile and abusive. An employee must demonstrate that the actions in question are both subjectively, and objectively hostile and abusive, meaning that “a reasonable person [in the same position] would have found the environment” abusive.”[8] So, what is “severe and pervasive?” Well, most of the time (but not always)[9] it’s safe to assume that a single or just a few isolated incidents are not enough to constitute “pervasive” harassment.[10] As for severity, the Fourth Circuit Court of Appeals ruling in Patterson v. County of Fairfax does a good job explaining this requirement .[11] In that case, the plaintiff alleged “repeated incidents of verbal harassment, . . . also incidents in which her fellow officers sprayed mace in her car, on her chair, and directly into her face. Additionally, she claimed that her fellow officers intentionally interfered with her ability to call for back-up, and occasionally failed to respond to successfully transmitted requests.”[12] It was these actions that the court found “demonstrate[d] a hostile work environment for purposes of Title VII.”[13]
By contrast, the Third Circuit Court of Appeals affirmed the District Court’s ruling that a hostile work environment did not exist where many of the claimed hostile actions fell within the scope of common managerial functions.[14] In Fichter v. AMG Res. Corp., the plaintiff’s evidence to support her hostile work environment included allegations of her supervisor:
(1) telling her she should get a job closer to home, (2) telling her she was disrespectful if she disagreed with him, (3) telling her to turn more work over to [male coworker #1], (4) wanting her work done more quickly so that [her supervisor’s] work was not held up, (5) asking [male coworker #1], but not Fichter, to do work for [her supervisor] even though [male coworker #1] worked for Fichter, (6) reassigning a female employee who previously worked with her to another position and leaving her with twice the workload, (7) not giving her a raise in four to five years, (8) requiring that she advise [her supervisor] if she would be arriving late or leaving early, (9) asking her for information but leaving the office without telling her before she could provide it to him, (10) keeping track of her vacation time, (11) providing her with little notice when auditors were coming, (12) asking for her opinion, but doing what he wanted if he did not like her answer, (13) not compensating her when she filled in for [male coworker #2], and (14) not respecting the extra work she performed ‘unless it benefitted [her supervisor].’[15]
So, what should you do if you think you’re being subject to a hostile work environment? Try to take a step back and think objectively about what is going on and the underlying reasons for the hostility. Then, seek a legal opinion. Every single case is different, and so it is important to have a legal professional examine the facts in your individual situation and provide an evaluation.
[1] Many state and local human rights laws establish more protected classes than Title VII, the ADAAA, or the ADEA.
[2] Sexual harassment is a form of gender discrimination. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).
[3] Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq.; Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
[4] The Americans with Disabilities Act Amendments Act, 42 U.S.C. § 12112 et seq.; e.g., Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012).
[5] The Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621; Gross v. FBL Fin. Servs., 557 U.S. 167 (2009) (holding that age has to be the “but-for” cause in an age discrimination case, not just merely a motivating factor of the adverse employment action).
[6] EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167 (4th Cir. 2009). This test is applicable to the states within the 4th Circuit Court of Appeals (Virginia, Maryland, North Carolina & South Carolina). Other Circuits may have slightly different standards.
[7] E.g., Fichter v. AMG Res. Corp., 528 Fed. App’x 225 (3d Cir. 2013) (Court of Appeals affirmed the District Court’s finding that a hostile work environment did not exist because many of the claimed hostile actions fell within the scope of common managerial functions. Here, the plaintiff’s evidence included her supervisor: “(1) telling her she should get a job closer to home, (2) telling her she was disrespectful if she disagreed with him, (3) telling her to turn more work over to [male coworker #1], (4) wanting her work done more quickly so that [her supervisor’s] work was not held up, (5) asking [male coworker #1], but not Fichter, to do work for [her supervisor] even though [male coworker #1] worked for Fichter, (6) reassigning a female employee who previously worked with her to another position and leaving her with twice the workload, (7) not giving her a raise in four to five years, (8) requiring that she advise [her supvervisor] if she would be arriving late or leaving early, (9) asking her for information but leaving the office without telling her before she could provide it to him, (10) keeping track of her vacation time, (11) providing her with little notice when auditors were coming, (12) asking for her opinion, but doing what he wanted if he did not like her answer, (13) not compensating her when she filled in for [male coworker #2], and (14) not respecting the extra work she performed ‘unless it benefitted [her supervisor].’”)
[8] Harris v. Evans, 66 Fed. App’x 465, 467 (4th Cir. 2003).
[9] E.g., Alford v. Martin & Gass, Inc., 2009 U.S. Dist. LEXIS 15110 (E.D. Va. Feb. 25, 2009) (noting that the hanging of a human effigy in a noose “by itself, could constitute severe and pervasive conduct because of the deeply hurtful meeting of a nose to African-Americans . . . .”).
[10] E.g., Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir 1998) (affirming a ruling on behalf of the defendant employer that there was no hostile work environment because the plaintiff’s allegations of numerous incidents of sexual innuendo and four instances where she was touched was not severe and pervasive enough to be harassment); Carson v. Giant Food, Inc., 187 F. Supp. 2d 462, 478 n.26 (D. Md. 2002) (“Mungro claims that his manager made a racially offensive comment to him. It is an isolated incident that does not constitute a hostile work environment.”).
[11] No. 97-1015, 1998 U.S. App. LEXIS 31367 (4th Cir. 1998).
[12] Id.
[13] Id.; see also, Pucino v. Verizon Communs., Inc., 618 F.3d 112 (2d Cir. 2010) (reversing summary judgment to the defendant and remanding to the District Court, and noting that allegations of the word “bitch” being used in the workplace “so frequently the plaintiff lost count” along with issues surrounding work assignments, the provision of tools, the use of a bucket truck, the issues as to use of restrooms, affected most of the major aspects of the plaintiff’s job, and should have gone to the jury).
[14] 528 Fed. App’x 225 (3d Cir. 2013).
[15] Id.
