Posts Tagged ‘hostile work environment’

Spankasauras and the Land of the Hostile Work Environment

 

The Eastern District Court of Pennsylvania recently held that a white female detective with the Philadelphia Police Department plausibly alleged that the city subjected her to a hostile work environment based upon the cumulative effect of alleged harassing conduct that included, among other things, a lieutenant calling her a “spankasauras” and “gabbygail.” 

Alone, such isolated or sporadic incidents would not support a claim of hostile work environment harassment, but the court found that such events viewed in conjunction could be deemed to create a humiliating and hostile work environment.  In the matter of Salvato v. Smith, the plaintiff alleged that in addition to being called names, she was treated differently than her male and black female coworkers in that the plaintiff was constantly questioned about her whereabouts, denied training opportunities, was not allowed to take personal calls from her child’s school, had her log-in times scrutinized, was denied requests for a steady shift, had her sick-leave scrutinized, received a warning letter in her personnel file, and was denied a transfer.   Moreover, much of the activity occurred after the plaintiff filed a grievance with the Fraternal Order of Police and a complaint with the EEO unit for discrimination. 

Although it remains to be seen how this case will play out, this case serves as a reminder to employers to be mindful of how supervisors treat employees after a grievance is filed.

This article is authored by attorney Kimberly J. Overbaugh and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Anti-Harassment Policy, Harassment, Labor & Employment | No Comments »

In the recent case of Hall v. Chicago the Seven Circuit found that a female plumber, (sometimes referred to as “Hall” by the author of this blog and allegedly referred to as “that woman” by her supervisor), has a triable hostile work environment claim under Title VII of the Civil Rights Act of 1964 based on incidents which viewed in isolation may seem relatively minor, but when viewed in their totality the court deemed sufficiently pervasive to make out a hostile work environment claim.

Hall or “that woman” was a female plumber for the City of Chicago and the only woman, aside from a secretary, in her division.  Hall claimed that that her male supervisor isolated her from coworkers, assigned her menial work, and subjected her to physically aggressive comments.  Specifically, she alleged that she was treated as the division pariah, undeserving of human interaction, that she was given menial tasks such as alphabetizing and sorting the same files and watching videotape footage that had already been reviewed.  The allegedly aggressive comments included her boss saying that he: “ought to slap that woman sitting out there,” “I could slap that woman and get a promotion” and “I ought to go postal on that woman.”

At the trial level, the court granted summary judgment in favor of the City of Chicago, but on appeal, the Seventh Circuit found that although Hall’s claims would not individually be considered severe or pervasive harassment under Title VII, a reasonable jury could view them together as creating a hostile work environment.  The appeals court also found that Hall established a triable factual dispute about whether her supervisor’s alleged harassment was based on her sex, but the court admitted this was a close call.

Interestingly, the court acknowledged that while Hall’s work may have been “unpleasant, boring, and unnecessary, that can be said of much work and there is no right to enjoyable work or to communicate with coworkers.  However, the court found that when forced to look at the totality of the circumstances, incidents which viewed in isolation as relatively minor, that consistently or systematically burden women throughout their employment are sufficiently pervasive to make out a hostile work environment claim.  The court found that in Hall’s case, her supervisor not only assigned her menial work, but he purportedly isolated her from co-workers, subjected her to verbal outburst, and physically bumped her on occasion.

As for Hall’s claim that the harassment was sex based, the court said it was a close call.  The court referenced the supervisor’s alleged comments and noted that rarely does one say that they are going to “slap a male” and to the extent that ambiguity remains, the supervisor attached “that woman” to the end of the sentence permitting a juror to conclude Hall’s gender was one factor leading to the outburst.  However, the court commented that not all sex-specific comments are evidenced of animus based on sex.  “Where a comment crosses the line from gender specific to evidencing gender animus is blurry and depends on factual context.”  Although the court viewed the supervisor’s use of “that woman” as indistinct from the use of “she,” and therefore not evidence of gender-based animus, the court felt that a jury could conclude that the comments evidenced gender animus.

The takeaway:  train supervisors to avoid phrases such as “that woman” which may have undertones of discrimination.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Posted in Labor & Employment, Sex discrimination | No Comments »

Employers, Check the Language of Your Anti-Harassment Policies

In a recent Equal Employment Opportunity Commission (“EEOC”) suit brought against a construction contractor, the EEOC established that a construction site where three black employees worked constituted an objectively hostile work environment under Title VII of the 1964 Civil Rights Act (“Title VII”) based upon evidence that: (1)  the employer was aware that a white supervisor regularly used racial slurs at the construction site; (2) the portable toilets at the site were covered with racist graffiti; and (3) the human resources manager also used a racial slur during a safety meeting.

In EEOC v. Holmes & Holmes Indus. Inc., a federal court found that no reasonable jury could conclude that a reasonable African-American would not be offended, even in a blue collar setting, by the type of conduct at issue in the case.  Nonetheless, even though the court found the at-issue conduct sufficient enough to establish an objectively hostile work environment, the court held that the case still has to be submitted to a jury to determine if the three black employees found the workplace subjectively, or in other words, personally offensive.  Indeed, in order to recover, the employees will have to prove that they personally viewed the conduct as offensive.

It appears likely that a jury will find that the employees found the conduct subjectively offensive because a significant amount of evidence shows that the employees were offended.  The employees complained to management about the alleged offensive speech and on at least one occasion, one of the employees stormed out of the room after such language was used.  However, there is a possibility that a jury might find otherwise because there is some evidence to suggest that the employees did not seem bothered by the conduct.  For example, two of the employees socialized with the allegedly offending supervisor outside of work, which evidence the employer might use to show that the employees were not subjectively offended by the supervisor’s conduct.

However, when the employer tried to use such evidence to argue that the employees could not prove an objectively hostile work environment because the employees were “friends” with the offending supervisor, the court rejected the argument stating that the test for determining whether an environment is objectively hostile is whether a reasonable person would have found the environment objectively hostile.  The court noted that there is no case law supporting the position that a supervisor’s belief that he was friends with his subordinates allows him or the employer to avoid liability for creating a hostile environment.

In finding that the employer created an objectively hostile work environment, the court pointed out flaws in the company’s anti-harassment policy and the lack of evidence showing that the employer had appropriately disciplined the offending supervisor after receiving complaints from the employees.  Although the company had a written anti-harassment policy, it did not specifically mention racial harassment or include an alternative avenue for complaint if a supervisor is the alleged harasser.  Additionally, the court noted that the company did not provide employee training on its anti-harassment policy during the relevant time period.

The court also noted that if a jury finds a racially hostile work environment, the employer will be vicariously liable for its supervisor’s actions because it cannot prove the affirmative defense set out in Faragher v. BocaRaton and Burlington Industries Inc. v. Ellerth.  Under those cases, an employer proves the Faragher/Ellerth defense to avoid vicarious liability under Title VII if the employer can show that it: (1) exercised reasonable care to prevent and correct promptly any racially harassing behavior; and (2) the employees unreasonably failed to take advantage of any preventative or corrective opportunities.  In the Holmes case, the court found that because the employees repeatedly complained to the employer’s management about the alleged harassment, the employer could not meet the second element of the Faragher/Ellerth defense.  Moreover, even if the employer could meet the second element, the court said that there was no way that the employer could meet the first element because it is well established that the mere institution of a policy alone is not sufficient to satisfy the first prong of the affirmative defense.  Because the employers’ policy in Holmes did not mention race or racial harassment and did not provide an avenue to bypass a harassing supervisor when making complaints, the court found the employer’s policy to be unreasonable as a matter of law on the grounds that it directed victims to report discrimination to their harassing supervisor and provided no alternative means to bypass the supervisor.

As a side, the Court also held that the employee’s use of allegedly offensive words outside of work, particularly in the form of rap music that two of the employees sang, is irrelevant and inadmissible at jury trial.

Lessons for Employers:  Employers should double check their anti-harassment policy to ensure that their policy makes reference to race or racial harassment and that the policy has an avenue to bypass a harassing supervisor when making complaints.  Employers who substantiate harassment complaints need to take disciplinary action and keep written documentation of what discipline was taken.  Employers who are aware of employees using racially offensive language at work should not turn a blind eye.   Employers must show that they are committed to enforcing their anti-harassment policies.  In addition to disciplining employees who violate anti-harassment policies, employers can show their commitment to their policies by routinely having employees participate in anti-harassment training.

The attorneys at Harmon & Davies, P.C. are here to assist employers with drafting and enforcing their anti-harassment policies and we also offer anti-harassment training for your employees.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Anti-Harassment Policy, Construction, Labor & Employment | No Comments »