5th Circuit: One N-word is enough to create a hostile work environment

Under Title VII, a hostile work environment claim requires harassment that is "severe or pervasive." A single incident can be severe enough to meet this standard. Ordinarily though, a single incident of verbal (as opposed to physical) harassment will not meet this standard. 

Not official use. 

Last week, in Woods v. Cantrell, the Fifth Circuit held that a supervisor calling his subordinate a "Lazy Monkey A__ N_____" in front of his co-workers was severe enough to state claim. I've published the racial epithet as it appears in the (very short) opinion, which includes a footnote, "The racial epithet is not further spelled out anywhere in the record." 

The Court relied in part on a case I wrote about when then-Judge Kavanaugh was nominated to SCOTUS in which he noted "No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African–Americans" (similarly concluding that a single use of the N-word by a subordinate would create a hostile work environment). 

Judge Amy Coney Barrett and the Case of the Last-Minute N-Word

 Back to some Judge Amy Coney Barrett employment law. Today's episode features Smith v. Illinois Dept. of Transportation. This was a hostile work environment and retaliation case, with a twist at the end. 

The employee alleged that he was told to "shut the f[] up," called a "stupid dumb motherf[]," and one guy threatened to "kick [his] ass" (f-words quoted as they appear in the opinion - you know I'd ordinarily let 'em fly in quotations). Does that create a hostile work environment claim? No. Why? No signs of discriminatory intent - hostile work environment claims arise under the discrimination statutes, so just being hostile is not enough. 

What about his retaliation claims? Well, the problem there was that he had a long, documented history of performance issues that were unrelated to any of his protected activity:

He received multiple ratings of “unsatisfactory” in two different formal performance reviews. His failings as an employee were chronicled in conversations and emails from a number of different supervisors and coworkers, who considered him unsafe, argumentative, and unable to follow instructions.

So, no retaliation claim either. 

Are you ready for the twist? Near the end of his employment, a former supervisor allegedly called him a "stupid ass ni[]." Judge Barrett acknowledged that this particular racial epithet "falls on the more severe end of the spectrum." Ultimately, she still affirmed summary judgment for the employer. Why? 

• "He introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace." Instead, "his supervisors made him miserable throughout his employment," but for reasons unrelated to race, and there was no evidence that this last epithet subjectively made things worse.

• And, his employment was already over. "The Department had initiated termination proceedings against Smith two weeks before, so he knew that he was about to be fired. And while things certainly could have gotten worse for Smith after the racially charged confrontation with Colbert, he offers no evidence that they did."

I've already seen some criticism of this decision. Although it was a panel decision affirming the district court (i.e. the four judges who looked at it all reached the same conclusion), I could also see a different panel coming out the other way. One could also contrast this opinion and then-Judge Kavanaugh's dicta on whether one n-word is enough to create a hostile work environment (that said, the facts on which Judge Barrett based her conclusion were not present in Judge Kavanaugh's case). 

Well, that Kimberly Guilfoyle story is somethin' else...

 You know I wouldn't take a break from my series on Judge Barrett's employment law decisions if it wasn't important... or scandalous. Okay, this is not exactly hard-hitting legal analysis, but it is a fascinating look at a high profile sexual harassment allegation. 

The New Yorker published a story, The Secret History of Kimberly Guilfoyle's Departure from Fox. It includes serious allegations:

[T]he assistant alleged that Guilfoyle, her direct supervisor, subjected her frequently to degrading, abusive, and sexually inappropriate behavior; among other things, she said that she was frequently required to work at Guilfoyle’s New York apartment while the Fox host displayed herself naked, and was shown photographs of the genitalia of men with whom Guilfoyle had had sexual relations. The draft complaint also alleged that Guilfoyle spoke incessantly and luridly about her sex life, and on one occasion demanded a massage of her bare thighs; other times, she said, Guilfoyle told her to submit to a Fox employee’s demands for sexual favors, encouraged her to sleep with wealthy and powerful men, asked her to critique her naked body, demanded that she share a room with her on business trips, required her to sleep over at her apartment, and exposed herself to her, making her feel deeply uncomfortable.

Guilfoyle reportedly denies the allegations. Per the article, Fox settled for "upward of four million dollars." 

This highlights the potential dangers of subordinates working with supervisors outside of a traditional workplace (like, the supervisor's apartment). These risks will likely be heightened as we go to more and more distributed work settings (work from home, work from coffee shop, work from AirBnB, etc.). Also, it's not just men engaging in workplace harassment. 

Judge Amy Coney Barrett and the case of the Costco stalker

By now, I'm sure you know that Pres. Trump nominated 7th Circuit judge, Amy Coney Barrett, to the Supreme Court. First, here's a great compendium of her seventh circuit decisions from SCOTUSblog. On Twitter, I asked them to add "tags" so that we can better find different types of cases (like, maybe "employment"). SCOTUSblog graciously replied "No promises, but we'll be working on this." 

Here's one employment law case (Title VII hostile work environment) in which Judge Barrett wrote the Court's opinion: EEOC v. Costco Wholesale Corporation. The EEOC won a jury verdict on behalf of a Costco employee, who was stalked by a customer. 

On the first issue presented, Judge Barrett sided with the employee, denying Costco's motion for judgment as a matter of law. Costco argued that the harassment did not reach the "severe or pervasive" threshold. Judge Barrett rejected the argument, noting that Costco focused only on the customer's statements and touches, which were not as egregious as some other cases. But, Judge Barrett noted other "constant" harassment: 

He followed Suppo around the store, watching her from around corners. He stared at her from behind clothes racks, disguised in sunglasses and a hat. He monitored her movements and asked her to account for her conversations with men. He made trips to the warehouse to see Suppo rather than to shop.

Judge Barrett sided with the employee on this issue, concluding that the harassment did meet the "severe or pervasive" test. She provided more of a mixed result on the other issue presented in the case though.

The employee took unpaid leave for about 14 months at which time Costco terminated her because she had exhausted her available leave. Judge Barrett held that the employee could not claim constructive discharge because Costco actually terminated her. And, she could not collect back pay following her termination because she was not terminated for a discriminatory reason. Thus, Judge Barrett affirmed the trial court's conclusion that the employee could not collect back pay after her termination.  

Judge Barrett, however, reversed the trial court by holding that the employee could collect back pay for the time she was on unpaid leave - but, only if the sexual harassment forced her to take the unpaid leave. She remanded the case to the trial court to decide that question.  

Third Circuit: Handful of Facebook posts did not create a hostile work environment

In Oncale v. Sundowner Offshore Svcs., Inc., Justice Scalia wrote that Title VII is not "a general civility code for the American workplace." To establish a claim for a hostile work environment, a plaintiff must establish "severe or pervasive" harassment. The Third Circuit just issued an interesting opinion addressing that issue in the context of Facebook posts.

The case is Chinery v. American Airlines, and it is a not precedential opinion. The harassment seems to have stemmed from a union leadership dispute that got a little ugly on Facebook. Here's how the Court described the Facebook posts (I try to avoid bloc quotes, but you really have to read the actual posts to get the full picture):

• One flight attendant, who made negative comments towards those opposed to the Union contract, posted a picture of a broken record on Wingnuts (a Facebook group). Chinery believed that the picture was an immediate reaction to something she posted on Facebook and was in response to the complaints she made to American’s human resources department about him.  

• During the campaign, a second flight attendant posted, “[T]his is war. [The incumbent union leaders] are my friends. If you f**k with my friends you f** with me and I don’t like being f**ked with :(.” (asterisks in original). Chinery interpreted this post as a personal threat since it referenced her campaign. 

Not official use.

• A third flight attendant made multiple harassing posts: (1) in response to a post about the campaign, he wrote “it’s your cunstitutional [sic] right to vote NO [to the Union challengers]”;  (2) he mocked her use of flashcards to study the Union contract and then wrote “[t]old ya I can’t cunt [sic] to potato,” which Chinery contends was an offensive reference to her gender;  (3) he wrote posts calling those opposed to the collective bargaining agreement “cavalier harpies” and “shrews of misinformation,” adding “[h]ave any of them LOOKED in a mirror? Tuck your shirt in fat ass . . . Fix your hair . . . How bout [sic] a tie? A little lipstick?”;  (4) he posted a picture of a “bedazzled” vagina, which Chinery believed was directed at her friend for defending Chinery on Facebook; (5) according to Chinery, he posted a picture of the Wicked Witch of the West with the caption “I don’t have time for basic bitches,” which she argues was about her. 

• About nine months after the election ended, Chinery was ordered to attend a disciplinary meeting based on allegations that she had taken a video of one of American’s vendors without permission. The meeting was rescheduled, and after a fourth flight attendant learned about the delay, he wrote on his personal Facebook page, “HOLY SHIT! I knew it!! Flipper has NOT had her meeting yet!” Chinery claims that “Flipper” is a derogatory term and that the comment was about her.

Not enough! The Court rejected the plaintiff's argument that the harassment was pervasive because social media is public and permanent. The Court recognized that some of the posts were "offensive" but "offhand comments and isolated incidents" are insufficient to create liability. Finally, the plaintiff alleged that the employer failed to enforce its own social media policy. That may be relevant when assessing respondeat superior liability - but it does not show severe or pervasive harassment.

Ultimately, the Third Circuit affirmed summary judgment for the employer. This may just be my subjective perception - but it seems like courts are becoming more hesitant to toss cases based on a lack of "severe or pervasive" harassment. Although this case is not precedential, it shows that plaintiffs still must clear that hurdle.

HT: Eric Meyer - When do (or don’t) Facebook posts create a hostile work environment?

I heard the 4th Circuit recognized a harassment claim based on rumors, pass it on.

[T]he central question presented is whether a false rumor that a female employee slept with her male boss to obtain promotion can ever give rise to her employer’s liability under Title VII for discrimination “because of sex.”

Welcome to Parker v. Remo Consulting from the 4th Circuit. The plaintiff alleged that the highest-ranking manager at her warehouse facility participated in the gossip, asking the man in the rumor, "hey, you sure your wife ain’t divorcing you because you’re f--king [the plaintiff]?" The manager allegedly went on to blame the plaintiff for "bringing the situation to the workplace" and told her that he would no longer recommend her for promotions.

The district court dismissed the claim, drawing a distinction between the plaintiff's sex (a protected characteristic under Title VII) and her conduct (generally not protected*). The Fourth Circuit reversed, pointing to the sex stereotype that "women, not men, use sex to achieve success." Additionally:

The complaint not only invokes by inference this sex stereotype, it also explicitly alleges that males in the RCSI workplace started and circulated the false rumor about Parker; that, despite Parker and Pickett’s shared tardiness, Parker as a female, not Pickett as a male, was excluded from the all-staff meeting discussing the rumor; that Parker was instructed to have no contact with Jennings, her male antagonist, while Jennings was not removed from Parker’s workplace, allowing him to jeer and mock her; that only Parker, who complained about the rumor, but not Jennings, who also complained of harassment, was sanctioned; and that Parker as the female member of the rumored sexual relationship was sanctioned, but Pickett as the male member was not. 

The Court concluded that the plaintiff had sufficiently pleaded a Title VII hostile work environment claim.

Now seems like a good time to share Ross Runkel's Case of the Week video series too. Here's his video on this case (find more at http://www.rossrunkel.com):



* Notable exception for sex stereotyping and protected activity (participation and opposition in good faith efforts to address discrimination).

University Liability Under Title IX for Anonymous Internet Harassment?

In a remarkable ruling, the Fourth Circuit held that a university may be liable for anonymous posts on a third party app - Feminist Majority Fdn. v. Univ. of Mary Washington.

Students generally alleged that they were harassed and threatened on Yik Yak because of their involvement in a feminist organization. Not familiar with Yik Yak? The now defunct app allowed anonymous posts from anyone within a certain geographic radius. It quickly devolved into something like Mos Eisley from Star Wars - "You will never find a more wretched hive of scum and villainy."

Title IX imposes liability on educational institutions that fail to adequately respond to sex-based harassment. Supreme Court precedent requires, however, that the university "exercises substantial control over both the harasser and the context in which the known harassment occurs." Davis v. Monroe County Board ofEducation.

Mary Washington was decided on a 12(b)(6) motion (i.e. under a very deferential standard at the initial pleadings stage). There are several truly remarkable components of the decision:

Not official use.

• A university may have an obligation under Title IX to police a third party app that has no real connection to education (we're not talking about a forum used in courses or for any other university purpose);

• The harassers might not even be students - the app was open to literally anyone who was within the geographic zone;

• The geographic zone included nearby Fredericksburg, and was not limited to just the university campus.

Put more bluntly, and quoting from a blistering dissent: 

The majority . . . would hold a public university and its officers liable for an allegedly inadequate response to anonymous messages posted by unknown persons on a third-party social media app unrelated to the university.

The majority opinion stretches the boundaries of Title IX liability. It also creates significant First Amendment concerns as some of the proposed solutions included censoring or blocking access to certain online forums. Another quote from the dissent:

Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims.

The majority opinion maintained that the university had other reasonable steps that it could have taken to address the harassment without infringing on anyone's First Amendment rights. The dissent concluded by expressly advising the university to "seek further review."

Kavanaugh, the N-word, and Hostile Work Environment

To state a hostile work environment claim, an employee must allege that (s)he was subjected to discriminatory harassment that was "severe or pervasive." What about one incident? Obviously, that's not pervasive; but, when is one incident severe enough to create a hostile work environment?

New SCOTUS nominee, Judge Kavanaugh, addressed this issue in a concurring opinion in Ayissi-Etoh v. Fannie Mae. A Fannie Mae vice president allegedly yelled at an African-American employee to "get out of my office ni**er." So, how about it? Was that one verbal incident enough? Judge Kavanaugh says yes:

It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor—as Ayissi–Etoh alleges happened to him—suffices by itself to establish a racially hostile work environment . . . No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African–Americans . . . . Here, as I see it, the alleged statement by the Fannie Mae Vice President to Ayissi–Etoh itself would establish a hostile work environment.

 HT: Robin Shea and Jon Hyman.

Dentist Faces Discrimination Lawsuit for Christian Music and Prayer Meetings

The media has jumped on a recent case involving a dentist who is being sued for harassing staff by constantly playing Christian music. Can employees really sue for an employer playing Christian music? Frankly, I think it would be a tough case to win for a lot of reasons.

Christian metal band, Stryper, from their To Hell with the
Devil Tour in 1986 (CC License).

Assuming we're talking about a hostile work environment claim, then the music must be subjectively offensive (actually offensive to the employee), objectively offensive (offensive to a reasonable person under the circumstances), and severe or pervasive enough to alter the working conditions and create an abusive or hostile environment. Can Christian music alone meet that standard? We'd need to know more about the situation - the volume, the lyrics, the location, the particular reasons the employees claim it was so offensive, etc. If we're talking about something mundane, like "We Wish You a Merry Christmas" then forget about it. If it's a constant barrage of deafening music with lyrics like, "worship Jesus or you'll spend eternity burning in hell you worthless heathen"... well, then the case becomes a little stronger.

It's definitely worth noting that the former employees also claim they were forced to participate in prayer sessions. That's an obvious no-no. The employer denies the allegation.

For a good video, check out this 2-3 minute video from the Saddleback Church (I know, I know... to be honest, I didn't expect an even-handed analysis either, but it's actually pretty objective): Is an employee or employer allowed to play Christian music or display Christian materials in their workspace?

HT: My friend Mike Chittenden emailed this one to me.

"Bow at the Altar . . . of Political Correctness" - COTW #164

Gender stereotyping claims, meet the super-manly world of ironworkers - men's men. Macho men. Masculine men. What "real men" should be (you get the idea). In EEOC v. Boh Brothers Construction Co. (opinion here), the Fifth Circuit, sitting en banc, provided us with 68 pages of analysis on same-sex gender stereotyping harassment.

Let's start with the harassing conduct. The crew superintendent called the plaintiff "pu--y," "princess," and "fa--ot"; often approached him from behind and simulated intercourse; exposed his penis while urinating in front of him; and teased him for using Wet Ones instead of toilet paper because (and I quote) that's "kind of gay."

The majority concluded that the evidence was sufficient to support a jury verdict that the defendant was liable for the harassment under Title VII. The divergent opinions in this case highlight a rift among judges when analyzing "shop talk" types of cases. One particular dissent pulled no punches in its condemnation of the majority (pardon the lengthy cut-and-paste, but this really highlights the differences among the judges):

By deftly extending the applicable law, Judge Elrod and the en banc majority—with the best of intentions—take a deep bow at the altar of the twin idols of political correctness and social engineering. Because that is a demonstrable departure from reason and experience and imposes an unsustainable burden on private employers in Texas, Louisiana, and Mississippi, I respectfully dissent . . . . 

In a world in which comments on Wet Wipes or pink shirts can be considered discrimination on account of sex, the American workplace becomes more like a prison than a place for personal achievement, individual initiative, and positive human interaction; one's speech is chilled as a condition of keeping one's job. As Judge Jones accurately observes, the majority opinion “portends a government-compelled workplace speech code”—“a ‘code of civility’ [imposed] on the American workplace.” Instead of resisting such an Orwellian regime, in which Big Brother (in the form of the EEOC or otherwise) constantly monitors the worksite to detect “improper” words and thoughts, the en banc majority fosters it without Congressional mandate. 

The hypersensitivity that is blessed unintentionally by the majority nudges the law in a direction that hastens cultural decay and undermines—if even just a little bit—an important part of what is good about private employment in the United States. Societies, and the legal systems of which they are mutually supportive, decline slowly, but ultimately with tragic consequence: “Not with a bang but a whimper.”

Wow, tell us how you really feel! So, what's the takeaway for employers? Crackdown on same-sex harassment and gender stereotyping. The dissent demonstrates that employers might have a receptive ear in litigation - but trust me, if you're counting votes at a circuit court in an en banc review of a jury verdict then you've already lost even if you win. That type of legal battle doesn't come cheap.

3rd Circuit on Continuing Violation - COTW #129

The Third Circuit recently issued a precedential opinion in Mandel v. M&Q Packaging Corp., analyzing a number of sex discrimination issues. Of particular interest, the Court addressed the continuing violation theory of hostile work environment sex discrimination under Title VII.

The plaintiff allegedly suffered a parade of horribles over many years of employment. Just some of the highlights:

Mandel claimed that, throughout her employment [she was] referred to as “woman,” “darling,” “the woman,” “fluffy,” “missy,” “hon,” and “toots”; having her body, clothing, and physical appearance commented on; being told that she was “foolish not to use [her] assets”; being told by Systems Manager David Benetz, when she asked for directions to a meeting at corporate headquarters, that “[f]or you . . . the meeting will start at my house tonight and we will conclude our part of it tomorrow morning  – maybe . . . we may need to postpone the meeting with everyone else a few hours to finish up . . .”; being told by Quality Manager Harold Brenneman that he fantasized about her while he was having sex with his wife; . . . [and] being told to clean the bathroom and make coffee.

One more thing . . . and it turns out to be a very important thing:

On April 6, 2007, during a meeting regarding sample orders, Bachert became angry, repeatedly called Mandel a “bitch,” and screamed “shut the fuck up.”

Why is this important? Well, the plaintiff faced a statute of limitations problem . . . as in, almost all of the allegations took place outside of the statutory period for bringing a Title VII claim. However, the Court reminds us of the "continuing violation" theory:

Under the continuing violation doctrine, discriminatory acts that  are not individually actionable may be aggregated to make out a hostile work environment claim . . . . [P]laintiff must show that at least one act occurred within the filing period.

Hmmm, and how does the continuing violation doctrine apply to this case?

Mandel has alleged at least one act that falls within the statute of limitations (i.e. Bachert calling her a “bitch” during a meeting), and many of the acts that  occurred prior to the  applicable limitations period involved similar conduct by the same individuals, suggesting a persistent, ongoing pattern.  We will, therefore, remand the case to the District Court for further proceedings, including a determination of the  scope of the incidents properly considered part of the continuing violation for the hostile work environment claim.

And now you see why that one incident suddenly becomes very important. It effectively brings in the preceding offensive conduct that would otherwise have fallen outside of the statute of limitations. The Court directed the district court to analyze whether a hostile work environment existed by examining the "totality of the circumstances" instead of "pars[ing] out each event and view[ing] them separately." That last blow-up may wind up costing the employer dearly. At the very least, it has dragged this case out with a remand to the district court.

Molly DiBianca has a post on this case, analyzing whether the final name-calling could constitute constructive discharge: 3d Cir. Issues a Bitchin' Constructive Discharge Decision.

SCOTUS Arguments on Who is a "Supervisor" for Harassment Claims

Yesterday, the Supreme Court heard oral arguments in Vance v. Ball State University (SCOTUSblog coverage here). You can read my previous coverage of this case here and here. And, the official transcripts from yesterday's arguments are available here.

Existing workplace harassment precedent differentiates between harassment by "supervisors" and co-workers. Employers are subject to vicarious liability, pending the Faragher-Ellerth defense, for harassment by supervisors. Whereas plaintiffs must establish negligence on the part of the employer if the harasser is merely a co-worker.

Vance v. Ball State Univ. will hopefully define who counts as a "supervisor" for employment harassment and hostile work environment claims. The Seventh Circuit held that the harasser can not be a supervisor unless he or she has the power to "hire, fire, demote, promote, transfer, or discipline" the victim. The most noteworthy part of yesterday's argument? Nobody endorsed this test (both parties and the United States argued against it). This seemed to bother Justice Scalia, who I'm guessing will vote in favor of the Seventh Circuit test.

The employee's counsel even went so far as to argue that the parties agreed on the applicable legal standard, which he phrased as:

[T]hose harassers whose employer-conferred authority over their victims enables or materially augments the harassment should count as supervisors.

This led to a number of sometimes silly hypotheticals, which I think were meant to demonstrate the problem with such a wishy-washy test. What if the harasser had the power to play country music at work all day? What if it was hard rock? What if the harasser could subject the victim to a cold work environment? Or make the victim chop onions? Or clean toilets? Justices Alito, Roberts and Scalia all hinted at the problem with having to decide the "materially augments" factor on a case-by-case basis, leading me to believe they will come down in favor of the bright line rule from the Seventh Circuit.

The employer argued that the employee in this case would not meet any of the standards - a point they made in their Brief while arguing that this is a poor case for deciding which "supervisor" test to use. And that's a concern in this case. The employee's case is pretty weak, and the Justices may agree that the supervisor test is not determinative and therefore punt on the issue. I hope that doesn't happen because there is a circuit split on this issue and I want an answer.

There was also a funny little skirmish involving Scalia and Ginsburg with regard to Skidmore deference and administrative deference generally (pp. 18-19). So, the opinions could be split along admin-law loyalties, with some Justices deferring to the EEOC's test (focusing on authority to direct day-to-day work activities).

Frankly, I think this case is a toss up. Did Justice Kennedy tip his hand? Not exactly. In fact, he only made one comment and it was to bring up his own standard that would use the Seventh Circuit bright line rule coupled with "an increased duty of care on the part of the employer to take necessary steps to prevent forbidden harassment."

My prediction: 5-4 for the bright line rule, split conservative bloc plus Kennedy in the majority with a concurring opinion by Justice Kennedy advocating the "increased duty of care."

Image: Work of federal government on Supreme Court website.

Naked Twister, Orgies, and Facebook - COTW #105

Ah yes: naked twister, orgies, and Facebook . . . just another Case of the Week! In Targonski v. City of Oakridge, the plaintiff brought a number of workplace discrimination claims, including a sexual harassment hostile work environment claim.

Her claim started off pretty well. She alleged that co-workers were spreading rumors that she was a whore, a lesbian, invited people to orgies at her house, and distributed nude photos of herself to anyone who asked. That alone would be a decent Case of the Week . . . but dontcha just know there's a twist?

To establish a hostile work environment claim, the plaintiff must establish that she was subjectively offended by the conduct. Let's throw some Facebook posts into the fray!

[P]laintiff was herself discussing on Facebook her desire for a female friend to join her "naked in the hot tub." The previous day on her Facebook page, plaintiff was discussing "naked Twister." May 22, 2010 postings on plaintiff's Facebook page by her Facebook "friends" talked about female orgies involving plaintiff, Cassie Bridges, and others, to be filmed by plaintiff's husband.

Hmmm, maybe she wasn't so offended by the workplace conduct after all. The plaintiff claims she was just joking around on Facebook with her friends. She also argued (and I think most people would agree here) that there's a difference between joking with friends on Facebook, and somebody spreading rumors in the workplace that she's a whore who loves orgies.

The judge decided that summary judgment was not appropriate in this case as the plaintiff's "explanation . . . has some substance and must be credited by the court." But she's not in the clear yet, because "the jury will have ample opportunity to consider the Facebook evidence and reach its own conclusions in this matter."

HT: My Mason Law classmate Derek Bottcher at Cooley (.vcf) tipped me off to Eric Meyer's post on this case.

Cha-Ching! $25 Million Race Discrimination Verdict - COTW #96

You put up numbers this big, and you've got a good great shot at landing Case of the Week honors. A New York jury awarded a steelworker $25 million in a race discrimination suit. What kind of treatment puts up numbers like this?

Elijah Turley still remembers the stuffed monkey with a noose around its neck found hanging from his driver's side mirror. He also remembers the "KKK" and "King Kong" graffiti on the walls of the Lackawanna steel plant where he worked for 14 years. And if that wasn't bad enough, there were the racial slurs from co-workers.

Sometimes it's hard to believe these things still go on in modern workplaces. And that was the line of attack the plaintiff's attorney used:

This case is about the breakdown of a man . . . . He wanted to be treated equally, treated equally in a culture that hadn't changed since the '50s.

Well, he has $25 million to build himself up again (alright, it will probably get reduced in one way or another - but still be a lot).

To the employer's credit, it did hire a private investigator, suspend employees, and install security cameras. I guess the jury felt that it just wasn't enough under the circumstances.

HT: Rich Meneghello via Twitter.

EEOC: Confederate Flag = Hostile Work Environment?

In Dawson v. Donahoe (opinion here), the EEOC recently held that employees wearing t-shirts with Confederate flags may constitute a hostile work environment:

In this case, Complainant has alleged that he notified the Postmaster as early as March 2011 of employees repeatedly wearing Confederate flag t-shirts to work, but it was not until May 2011, that the Postmaster finally instructed the supervisor to start sending the employees home to change. Complainant argues that the Postmaster "procrastinated in taking action on my complaint" and that he filed the complaint, in part, because of the Postmaster’s "lack of concern for my feelings associated with this matter." Complainant explained that he was offended by the t-shirts because he saw the Confederate flag as a symbol of racism that evoked the history of slavery. Complainant also alleged that he is now fearful of one the employees he complained about because the employee has started parking his car off Agency properly [sic property?] and Complainant believes he might have a weapon in his car.

Based on the circumstances alleged by Complainant, we conclude that he has stated a viable claim of discriminatory harassment which requires further investigation.

While the EEOC opinion addresses the requirement that the conduct be subjectively offensive, it doesn't really touch on whether the Confederate flag is objectively offensive (aside from using the phrase "offensive t-shirts" and the implication that it must be objectively offensive if there is a valid hostile work environment claim here).

Over at Volokh Conspiracy, Eugene Volokh raises some First Amendment concerns about the ruling.

Bad Christmas Card Idea - COTW #66

I know, I know - it's way too early to start thinking about Christmas. But when I see a good Case of the Week pop up, I can't wait until after Thanksgiving just to be seasonal!

So, employers, what do you get the employee on your list who has everything? Beats me. But, I can tell you what you don't get him - a picture of Santa Claus in KKK gear, holding a noose, standing in front of a burning cross, wishing the employee a "White Christmas."

Not surprisingly, the employer who allegedly did send such season's greetings now faces a lawsuit. In an interview, one of the employees described his reaction: "It scared me, because I have a wife; I took it as a threat, that they were saying they're trying to kill me."

You can read more here, including a video showing the offending image and interviews with the plaintiffs. I have embedded the video below (may not display for email subscribers - click here to view online):




HT: Donna Ballman (@employeeatty) via Twitter.

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.

What is Sexual Harassment?

This week, I'm writing a series of posts to address some sexual harassment issues that have popped up in the mainstream media lately. The issues arise from allegations made against Herman Cain. I want to emphasize that to date I have no idea what the actual allegations even are, let alone whether they are true. My purpose is not political, but informative.

Let's start with the most basic question: What is sexual harassment? Some recent commentary has suggested that there's a really low bar. A guy says something innocent and a woman takes offense... voila, sexual harassment! In fact, sexual harassment is pretty difficult to establish.

There are two main types of sexual harassment. The first is quid pro quo, or "this for that" harassment. Trading workplace favors for sexual favors, or imposing workplace penalties for withholding sexual favors. This is the creepy manager abusing his position to hit on subordinates.

Then there's "hostile work environment" harassment. Per the United States Supreme Court:

[S]exual harassment so "severe or pervasive" as to " 'alter the conditions of [the victim's] employment and create an abusive working environment' " violates Title VII . . . . [T]o be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.

Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Supreme Court has repeatedly explained that:

Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." A recurring point in these opinions is that "simple teasing," offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code."

Id. I think that's a lot harder than some commentators acknowledge.

In short, sexual harassment has a pretty high bar. Of course, that's a high bar for a successful lawsuit. Next post: How hard is it to get rid of baseless sexual harassment claims?

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.

Gay Wedding Invitation is not Harassment - COTW #65

The employment law Case of the Week is Walker v. Jackson, an EEOC decision from October 6, 2011 (sorry, no link but if you have Westlaw it's 2011 WL 4889255). It answers the age old question - if I get invited to a same sex wedding celebration, was I subjected to religious harassment? If you answered, "are you freakin' kidding me?" then congratulations! You and the EEOC agree (OK, the EEOC was a little more delicate).

But what if I complained about it and then had to endure people congratulating the employee on his "marriage?" (use of "quotes" is the Complainant's thing, not mine). Still no? Yes, still no.

The Complainant received the following email via a work distribution list:

[Employee A] and his partner [named] are getting married this Sunday. The IO is sponsoring an informal celebration to congratulate [Employee A] on this happy event. Please feel free to drop by the IO conference room on Thursday, October 7 at 4:30 P.M. to wish them well.

This prompted the Complainant to respond (FYI -apparently a "Reply All"):

I feel your message announcing the celebration of the “union” of [Employee A] and his “Partner” was offensive and insensitive to my religious faith as a Christian. I think it is general knowledge that the Christian faith only condones “marriages” between men and women, not men and other men. As acting Office Director, I feel you could have been more “sensitive” and “neutral” with regards to this issue.

So, what do you think happened next? "The next day, NCEA employees sent approximately 15-20 emails on the global list-serve (including Complainant) congratulating Employee A on his marriage." But, "[n]one of these emails specifically mentioned Complainant or his email."

This is not religious harassment. The Complainant was invited to a voluntary social gathering, and the congratulatory emails did not mention the Complainant or challenge his religious beliefs. Apparently one private email did question his religious beliefs but that's not enough to constitute a "severe and pervasive" hostile work environment.

Case dismissed. HT: Volokh Conspiracy.

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.

"Best B*** J**s on the #8 Line" - COTW #59

The latest Case of the Week is a flashback; we're travelling all the way back to late, great, nineteen ninety-eight. Hostile work environment claims based on sexual harassment require that the harassing conduct be subjectively offensive. That is, the Plaintiff must find the conduct offensive and the harassment must be unwelcome.

In Sublette v. Glidden Co., 1998 WL 964189 (E.D. Pa.), the Plaintiff alleged that her co-worker "repeatedly requested oral sex from her and leered at her while making suggestive comments." Also, a shift supervisor "made comments about her breasts," among other things. Sounds like we could have a hostile work environment claim here, right?

But wait... the conduct must be unwelcome and offensive to the Plaintiff. It sounds offensive. But, how can we possibly tell if this particular Plaintiff found it offensive? I'm glad you asked! Maybe the Defendants have evidence of:

1. Plaintiff's crude and vulgar language; 

2. Plaintiff's discussions with her co-workers of her intimate relations with her husband; 

3. Plaintiff's act of wearing a sign essentially saying “Best Blow Jobs on the # 8 line;” 

4. Plaintiff's act of ripping her t-shirt and exposing her cleavage; 

5. Plaintiff's act of wetting her t-shirt and standing in front of a large industrial fan to show off her breasts; 

6. Plaintiff's use of sexual innuendo including her comment apparently offering a “blow job” to a co-worker; 

7. Plaintiff's permitting a male co-worker to imprint his handprint in paint on the back bottom of her t-shirt, on her buttocks; and 

8. Plaintiff's touching of male co-workers on their thigh and buttocks during working hours.

As the title of this post gives away, number three is my favorite!

The Court had "little difficulty" finding that the evidence was relevant and therefore possibly admissible. The Court did, however, reserve the right to examine whether the probative value outweighed any unfair prejudice as the case developed (if not, it may still be inadmissible).

Lesson for employees: be careful how you present yourself at work! For employers: document inappropriate behavior.

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.

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.