hostile work environment

By Linda Schoonmaker and John P. Phillips

Seyfarth Synopsis: In a recent decision, the Eleventh Circuit Court of Appeals held that the use of the N-Word in the workplace one time is sufficient to trigger a hostile work environment. Additionally, the Eleventh Circuit held that an employer may be held liable for workplace harassment when the plaintiff admitted that she did not complain of harassment until her final day of employment (and when the employer alleged that the plaintiff never complained of harassment). In light of this decision, and in light of the increased focus on workplace harassment over the past year, employers should use this case as an opportunity to review their No Harassment Policies and update their employment law training—to proactively ensure that harassing conduct does not occur in their workplaces.

When faced with allegations of a hostile work environment, employers often rely on two defenses: First, in order to be actionable, a hostile work environment must be both “subjectively” and “objectively” hostile. In other words, the plaintiff must subjectively perceive the harassment to be abusive, and the work environment must be one “that a reasonable person would find hostile or abusive.” Over the years, courts have typically required multiple instances of inappropriate or harassing behavior, in order to meet this standard. Second, if the harassing behavior was committed by co-workers, the plaintiff must have complained of the harassment. In other words, the employer must have knowledge of the harassing conduct (either actual or implied—companies cannot hide their heads in the sand) before it can be held liable.

In a recent decision, however, the Eleventh Circuit Court of Appeals held that use of the N-Word on one occasion could create a hostile work environment, and the Court held that the employer could be held liable even though the plaintiff admitted that she never complained about alleged harassment until (allegedly) right before her termination. (In fact, the company denied that she ever complained at all.)

Given the increased media focus on workplace harassment, this case provides a good opportunity for employers to review their anti-harassment policies and procedures, in order to proactively ensure that harassment-related issues do not proliferate in the workplace.

Background on the Case

In Smelter v. Southern Home Care Services, Inc., the plaintiff had been hired by Southern Home Care Services in July 2013 as a customer service supervisor. As part of her job, the plaintiff was responsible for coordinating with caregivers and clients, scheduling in-home visits, and accurately recording all caregivers’ work time. There was no dispute that the plaintiff required extra training and committed many mistakes during her employment. In September 2013, she was terminated for poor performance, after a final incident in which she got in a heated argument with and yelled at a co-worker. Following her termination, the plaintiff asserted the following allegations:

  • She had endured racist remarks from her co-workers nearly every day during her employment.
  • During the argument with her co-worker on the last day of her employment, her co-worker had called her a “dumb black [N-Word].”
  • Her co-workers had made derogatory comments about black men, black women, President Obama, and compared the plaintiff with a monkey from the movie Planet of the Apes.
  • Her supervisor thought the racist comments were funny.

Although the plaintiff admitted that she had never complained about any of the comments prior to the final incident, the plaintiff alleged that she had told her supervisor about the harassment before she was terminated. Her supervisor claimed that she never complained about any race-related comments, and the plaintiff’s exit interview paperwork—which both the plaintiff and her supervisor signed—had no mention of any harassment-related complaints.

Ultimately, the district court granted summary judgment for the company, finding that the harassment the plaintiff allegedly experienced was not sufficiently severe or pervasive enough to constitute a hostile work environment, as a matter of law, and that the company had no knowledge of the alleged harassment. The plaintiff appealed to the Eleventh Circuit.

The Eleventh Circuit’s Opinion

On appeal, the Eleventh Circuit reversed the district court’s dismissal of the plaintiff’s hostile work environment claim. In doing so, the Eleventh Circuit made two significant holdings:

First, the Court held that even standing alone, the single use of the N-Word was sufficient to constitute severe harassment. The Court explained:

Southern Home argues that [the co-worker]’s “one-time use” of [the N-Word] was insufficient to establish severity as a matter of law. We strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner.

The Court also held that the other comments alleged by the plaintiffs were similarly sufficiently severe to create a hostile work environment, and consequently, the plaintiff had alleged a legally actionable hostile work environment claim.

Second, the Court disagreed with the district court that the employer did not have knowledge of the alleged harassment. Although it was undisputed that the plaintiff failed to report any harassment until the final day of her employment (and the company disputed whether she had even reported it then), the plaintiff had alleged that the racist slurs were “funny to everybody that worked in the . . . office,” including her supervisor. The Court found that this was sufficient evidence to hold that the supervisor had knowledge of the comments, since she could not have found the comments funny if she did not hear them.

Thus, the Court found that the plaintiff had alleged an actionable hostile work environment claim, and it remanded the case to the district court for trial.

Takeaways

In light of this decision and the increased awareness of improper workplace conduct stemming from the #MeToo movement, there are a number of proactive steps that employers can take to help ensure that their companies have the proper culture to avoid harassment complaints and allegations:

  • Review and revise, if necessary, the No Harassment Policy. Most companies have No Harassment Policies (and if your company doesn’t, it should). However, often those policies have not been updated in a number of years. Now is a good time to pull out the policy, review it, and make any necessary updates, including ensuring that there are clear, and multiple, avenues for employees to report harassment.
  • Train your managers and supervisors. Your supervisors are your most effective buffer against employment law-related allegations and lawsuits, and they serve as a conduit between the company and its employees. Managers and supervisors should get regular anti-harassment and other employment-law based training, in order to ensure that they will know when harassment is occurring and will know what to do if they spot inappropriate conduct.
  • Focus on proper documentation. In conjunction with training your supervisors and managers, documentation issues should be covered. To defend any lawsuit, you must have good documentation. Your supervisors should be trained on correctly documenting all employment actions.
  • Promptly investigate and correct any complaints of harassment. Once the company is aware of any improper harassment-related conduct, whether from a direct complaint or an observation in the workplace, the company must take prompt and appropriate action. In doing so, it is important to take all allegations and complaints of harassment in the workplace seriously, immediately perform a thorough and complete investigation of any harassment complaints, and implement swift, appropriate, and proportional remedial action, if necessary, including possible termination or suspension.

Over the past year, workplace harassment issues have increasingly grabbed headlines. While all employers can agree that use of the N-Word is especially egregious, employers must take steps to ensure that such conduct does not occur. More importantly, employers must ensure that they have the policies and procedures in place to prove that such conduct did not occur. This means having an up-to-date No Harassment Policy, and supervisors and managers who are well-trained on anti-harassment and proper investigation methods. By proactively addressing any workplace harassment issues head-on, employers can put themselves in the best possible position to defend any subsequent lawsuit.

By Kelsey P. Montgomery and Dawn Reddy Solowey

Seyfarth Synopsis:  Telling African-American employees “that if they had ‘n—– rigged’ the fence, they would be fired” may be enough, standing alone, to state a hostile work environment claim.  The Third Circuit clarifies that “severe or pervasive” discrimination is the correct standard for hostile work environment claims.   

The Third Circuit recently held that a single word or incident, if severe enough, may create an actionable hostile work environment claim. The Court clarified that in hostile work environment cases, the proper legal standard is not whether the objectionable conduct in question is “pervasive and regular,” but rather whether it is “severe or pervasive.”

The plaintiffs in Castleberry v. STI Group, both African-American men, are pipeline workers who worked for defendants as general laborers on an all-white crew.  In their complaint, they alleged that despite having more experience than their white counterparts, the plaintiffs were assigned to clean around the pipelines, but were not permitted to work directly on them.  Moreover, on multiple occasions, a colleague anonymously wrote “don’t be black on the right of way” on the pipeline workers’ daily sign-in sheets.  The plaintiffs alleged that after working on a fence removal project, a supervisor told them “that if they had ‘n—– rigged’ the fence, they would be fired.”  They reported this final incident, and were terminated two weeks later without explanation.  The complaint alleged that although they were briefly rehired, the defendants’ terminated their employment a second time, claiming a “lack of work.”

The plaintiffs subsequently brought harassment, discrimination, and retaliation claims against the defendants. At the outset of the case, the defendants moved to dismiss on the grounds that a single, isolated incident could not constitute a hostile work environment.  The trial court agreed, dismissing the plaintiffs’ hostile environment claims, holding that a single use of a racial slur was not “pervasive and regular” discrimination.

On appeal, the Third Circuit reversed. After acknowledging inconsistent precedent in the Circuit, the appellate court clarified that “severe or pervasive” was the correct standard for hostile work environment claims – not “pervasive and regular” or even “severe and pervasive.”  The Third Circuit explained:

Indeed, the distinction means that severity and pervasiveness are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.

The Third Circuit relied on U.S. Supreme Court precedent to support the “severe or pervasive” standard.

Having clarified the hostile work environment standard, the Court in Castleberry found that “it is clear that one such instance [of a supervisor using the ‘n-word’] can suffice to state a claim.”  Moreover, as alleged here, the plaintiffs’ supervisor threatened to terminate their employment (and then actually did) at the same time that he used the derogatory racial epithet.  Thus, the Court held that this allegation was sufficiently severe to state a hostile work environment claim.

Notably, the Court also found that the plaintiffs’ allegations could have alternatively satisfied the “pervasive” part of the clarified standard; not only did their supervisor allegedly make the racially derogatory comment, but they were also allegedly exposed to racial hostility when on several occasions their sign-in sheets bore discriminatory comments and because they were relegated to menial tasks while their white colleagues were allowed to perform more complex work.

Few words are more malicious than the “n-word,” but employers should be alert to the fact that the Third Circuit’s reasoning would logically extend to isolated discriminatory remarks about religion, gender, or any other protected classification. It is, therefore, imperative that employers maintain strong anti-discrimination policies, require and encourage employees to report discrimination, and promptly investigate and remediate any alleged discriminatory remark or other conduct, even if the allegation is of a single remark or incident.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

 

 

 

 

 

By Steve Shardonofsky and John P. Phillips

Time WarpSeyfarth Synopsis:  The U.S. Fifth Circuit Court of Appeals recently held for the first time that the continuing violation doctrine applies even when a plaintiff was subject to harassment that was severe enough to put the employee on notice of the duty to file a complaint.  The lower court will now consider conduct many years outside of the 300-day limitations period under Title VII. This decision alters prior Circuit precedent, widens the reach of the continuing violation doctrine, and serves as warning for HR professionals and litigation counsel.

Unlike discrete acts of retaliation or discrimination, conduct that may support a hostile work environment claim often occurs over a period of time and cannot be said to occur on any particular day.  Because of this difference, most courts have long recognized the “continuing violation doctrine,” which essentially says that as long as one harassing act occurs within the filing period, the entire time period of the hostile work environment may be considered by the court for the purpose of determining liability.

In Panagiota Heath v. Southern University System Fdn. et al., a university professor (Heath) alleged that she was subject to ongoing harassment because of her sex by her immediate supervisor as far back as 2003.  The alleged harassment included having her re-write exams, coercing students to make complaints against her, denying her request for a sabbatical, telling her that he did not believe she was capable of writing a book, and excluding her from meetings because she talked “too much for a woman.”  Heath initially filed a lawsuit in Louisiana state court in 2009 alleging sex discrimination, but the suit was dismissed when she stopped pursuing it. She then took a sabbatical in 2010-2011 for job-related stress, but alleged that the harassment continued after she returned to work, including being subject to belittling comments and intimidating conduct from her supervisor. More than 200 students signed a petition asking for Heath to be changed to a “non-hostile” and “non-harassing” work environment.  Heath complained about the conduct in 2009 and 2012.  But there was no indication that the University responded.  In early 2013, she filed a charge with the EEOC and eventually filed her second lawsuit.

The district court granted summary judgment to Southern University on Heath’s hostile work environment claim, holding that she could not rely on any conduct that occurred outside of the limitations period (300 days before filing her EEOC charge) and that the conduct inside the limitations period was not sufficiently severe or pervasive to establish a claim. The district court relied on the Fifth Circuit’s Celestine v. Petroleos de Venezuella (Celestine I) decision from 2001, which addressed the continuing violation doctrine and required courts to consider numerous related factors, including whether “the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights.” Under Celestine I, if the harassing conduct was sufficiently severe to put the employee on notice of the need to file a complaint, the employee typically could not rely on the continuing violation doctrine.  Rather than wait until 2013, the district court found that Heath should have filed a claim in 2011 when the harassment continued after her sabbatical.

The Fifth Circuit reversed and remanded, acknowledging for the first time that the Supreme Court’s 2002 National R.R. Passenger Corp. v. Morgan decision overruled Celestine I to the extent that the Fifth Circuit and other Circuits held that “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.”  Thus, at least in the Fifth Circuit, the date on which a plaintiff becomes aware that he or she has an actionable Title VII claim is no longer relevant.  Nevertheless, courts are left with other factors to consider in deciding whether apply the continuing violation doctrine, including (1) whether the separate acts are related, (2) whether any intervening acts by the employer “severed” the acts that preceded it from later conduct, and (3) whether there are any equitable factors that should prevent the court from considering the full scope of the continuing conduct.  Based on these other factors, the Fifth Circuit found that Heath had properly alleged a continuing violation and remanded for a determination about whether the claim relating to conduct since 2011 could survive summary judgment.

The case is a cautionary tale for HR professionals and litigation counsel, and a reminder that over-reliance on the statute of limitations in hostile work environment claims is not an ideal tactic.  Because stale internal complaints and allegations going back many years can be revived in subsequent litigation, HR professionals and employment counsel should take care to always accurately and thoroughly document employee complaints and related investigations, take prompt and effective remedial action when appropriate, follow-up with the complainant, and consider what other actions to take in order to “sever” or “break” a possible continuing violation.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the  Labor & Employment Team.