5th Circuit Recognizes Age-Based Hostile Work Environment - COTW #58

Hostile work environment claims are nothing new. But, what a lot of people don't know is that they are actually based on discrimination statutes. Your work environment may be hostile, but if the hostility is not based on a protected class then you probably don't have a claim.

Hostile work environment claims generally arise from Title VII (protecting sex, race, religion, color, national origin). However, age is a protected class under a separate statute, the ADEA. Whether the ADEA creates a cause of action for hostile work environment is an open question in many jurisdictions - but, after the latest Case of the Week, not the Fifth Circuit!

In Dediol v. Best Chevrolet, Inc., the Fifth Circuit held:

[T]he ADEA and Title VII share common substantive features and also a common purpose: "the elimination of discrimination in the workplace . . . . [T]he broad application of the hostile-environment doctrine in the Title VII context; the general similarity of purpose shared by Title VII and the ADEA; and the fact that the Title VII rationale for the doctrine is of equal force, all counsel" the result that a claim for hostile work environment based on age is recognized under Title VII.

(quoting Crawford v. Medina General Hosp., 96 F.3d 830 (6th Cir. 1996)). A little sidenote here, in Gross v. FBL, the Supreme Court recently rejected the idea that Title VII and the ADEA should be interpreted identically. That said, they are similar so the Fifth (via the Sixth) Circuit's analysis here seems sound.

So, what kinds of facts might support such a claim? Well, in Dediol the employee requested time off to volunteer at a church event. His supervisor allegedly replied, "You old mother******, you are not going over there tomorrow" and "if you go over there, [I’ll] fire your f*****g ass." And then, the supervisor "never again referred to him by his given name, instead calling him names like 'old mother******,' 'old man,' and 'pops.'" Note to employers, profanity makes everything sound worse (compare "old" to "old mother******").

What about here in Pennsylvania and the Third Circuit? Ahhh, a tease for a future blog entry (check back next week).

A ton of blogs have covered this case already, but here are some good ones: Eric Meyer's This old mother****** may just have an age discrimination claim; and Paul Mollica's case summary in Outen and Golden Employment Law Blog.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.