Our clients often lament that they worry that every rude or wrongful comment made to an employee is a potential lawsuit. We like to remind them that the workplace is made up of people and sometimes people don’t behave as well as they should. In fact, sometimes people in the workplace say or do offensive things, either on purpose or unintentionally. The question we are often asked is when does offensive conduct or words become actionable.
Courts generally hold that behavior (words or deeds) must be “severe or pervasive” in order to be the subject of a Title VII claim by an employee. But what does that mean?
Of course every case is different and courts decide each case based on its facts, but the standards remain the same, the problem is how to apply them. The 7th Circuit addressed the issue last week in Gates V. Chicago Board of Education.
In Gates, the plaintiff had worked for the Chicago Board of Education as a building engineer. Gates is African American and over 40 (born in 1965). He claimed that his supervisor called him the "N-word" on a few occasions, told him he would never be promoted because he was too old and black, and mocked him in other humiliating ways. While these events did not happen daily because his supervisor was not on site every day and because Gates himself had taken FMLA, bereavement and other leave during the time, Gates said that these events led him to take one of those medical leaves because he was having homicidal thoughts about his supervisor and the school principal.
Gates filed suit for age and race discrimination. the district court concluded that Gates could not sufficiently establish that he suffered a racially hostile work environment in violation of Title VII. The court explained that “the threshold for plaintiffs is high, as ‘[t]he workplace that is actionable is one that is “hellish.” “The harassing conduct,” the court continued, “must be severe or pervasive and Rivera’s behavior towards Gates was neither.”
The 7th Circuit Court of Appeals reversed the lower court and specifically found that the “hellish” work environment definition of severe and pervasive is incorrect. The court held that “[W]hile a “hellish” workplace is surely actionable, plaintiff’s evidence need not show a descent into the Inferno.” In ruling this way, the court found that Gates was entitled to a trial on his allegations.
So, how can an employer assess a situation surrounding a discrimination complaint? The Gates court provided a little insight in specifically differentiating between remarks made by co-workers and those made by a supervisor. Physically threatening or humiliating conduct is always more severe than offensive conduct and the court acknowledged that had the remarks alleged by Gates been made by co-workers, it may not have found that he was entitled to a trial. The court emphasized that racial epithets that include the "N-word" from a supervisor to the worker are almost always sufficient to show a hostile work environment, although not always the case if made indirectly (said to another) or said by co-workers.
The lesson for employers is once again to not only have a solid anti-discrimination policy in place and regularly train on it, but to hold supervisors to the highest standards of conduct and ensure that employees know that their complaints will be taken seriously and without retaliation.
