Sticks and Stones May Break Your Bones, But Words Can Really Hurt You!

We all heard it as kids – how sticks and stones can break your bones, but words can “never hurt” you.

Well, forget it as adults.

In today’s work environment, words can be just as bad if not more devastating for employment practices liability. And the latest installment of rewriting the famous children’s rhyme comes courtesy of EEOC v. Sunbelt Rentals, Inc., ___ F.3d ___, 2008 WL 836409 (4^th Cir. March 31, 2008).

            In Sunbelt Rentals, the Fourth Circuit Court of Appeals reversed summary judgment against a Title VII claim for religious harassment. Through the opinion, the Court reminded all of us of the sanctity of diverse religious belief within a context of proving hostile work environment harassment when words are the primary discriminatory factor. And when combined with other actions and inactions by a defendant employer, the result led to a determination that thoroughly outlines unacceptable behavior in the workplace, and what the law requires to maintain a work environment free of unlawful harassment.

            At issue in Sunbelt Rentals was a recently converted Muslim, Ingram, who was hired in October 2001, a month after the infamous “9/11” attacks by Islamic extremists. Initially hired as a driver for this equipment rental company, he was later promoted to rental manager and held that position at one of its Maryland offices until terminated in February 2003. He was also the only Muslim at the office.

During his employment, Ingram made his religion known and defendant provided certain accommodations to practice his faith. For example, he could use a private room for short daily prayer sessions at work; he was allowed to attend a weekly 45-minute congregational prayer session on Friday afternoons; and he was permitted to have a beard and wear a kufi, a traditional Muslim headgear worn by men. But despite these allowances, Ingram was also subjected to a steady barrage of demeaning comments and actions regarding his faith – most of which, the Court found, “went unaddressed and unpunished” by defendant’s supervisors.

            For example, coworkers and supervisors often called him names such as “Taliban” and “towel head”; frequently made fun of his appearance and suggested he was a terrorist; challenged his allegiance to the United States; and made comments about all Muslims being associated with senseless violence.   He was also subjected to religiously charged incidents – including a manager who once held a metal detector to his head and, when it did not go off, called Ingram a “fake ass Muslim want-to-be turbine wearing ass.” In addition, Ingram was told that if he ever got upset he should toss a stapler in the air like a model airplane in a manner he considered referenced the 9/11 attacks, was subjected to a cartoon posted in the dispatch area depicting Muslims as suicide bombers, and was the victim of other forms of harassing behavior such as having his time card hidden on Fridays when he went to congregational prayer, having his computer constantly unplugged, and once having his business card defaced by profanity.

            According to the Court, after nearly every incident Ingram verbally complained to management but the harassment continued. He eventually complained to defendant’s human resources department which asked for a written account of specific incidents and then forwarded to local management a summary of the complaint for investigation, coupled with a statement that “these are serious allegations and … discrimination on the basis of religion could not be tolerated”. An investigation was conducted, but it was done by a manager who had already received prior complaints by Ingram and had not taken steps to actually stop the harassing conduct. This pattern continued, as the investigating manager talked with Ingram and his coworkers about the alleged harassment, then failed to take any disciplinary action because he did not believe there was sufficient evidence about who was responsible.

Nevertheless, the investigating manager did instruct employees to stop making comments about Ingram and Muslims in general, then reported back to corporate human resources that the allegations were “personal” in nature rather than “religious based”. He also reported that Ingram’s problems stemmed from performance and personality problems, that the local office had accommodated Ingram in a number of ways that allowed him to practice his faith, and that he had spoken with Ingram about “how he should not `take things so personal’” at work. Another manager was also brought into the investigation, but according to Ingram never asked him what had happened and simply informed Ingram that his coworkers had denied any harassing conduct.

Following the investigation, conditions somewhat improved for a short period of time, then started again in a similar fashion. Ingram again complained to local management, who accusing him of “being paranoid,” “seeing things” and “trying to build a case against” defendant. Ingram was eventually terminated in February 2003 for reasons unspecified in the opinion, and following an EEOC complaint and investigation this action ensued. After discovery was completed, the United States District Court for the District of Maryland granted summary judgment for defendant and the EEOC appealed.

Reversing the District Court’s decision, the Fourth Circuit found that a genuine issue of material fact did exist as to whether “severe or pervasive” harassment had occurred. In the process, the Court made a number of observations that should help employers when navigating similar situations.

·                    Remember that the standard has both a subjective and objective component. For the subjective element, a plaintiff must show that he or she perceived the work environment as abusive. For the objective element, a plaintiff must show that a “reasonable person” in the plaintiff’s position would find the work environment objectively hostile or abusive. Both elements must be met, and they tend to balance the effect of each other.

·                    As a practical (and legal) matter, the “objective” inquiry is key. This inquiry involves looking at all the circumstances, and in particular whether the conduct is frequent, severe, physically threatening or humiliating – or merely an offensive utterance, and whether it unreasonably interferes with the plaintiff’s work performance. Significantly, no single factor is controlling.

·                    Although this standard is intended to keep the workplace environment free of “`discriminatory intimidation, ridicule, and insult’”, it is equally intended to not establish a “`general civility code’” for behavior. Rather, the harassing conduct must be “`[so] extreme [as] to amount to a change in the terms and conditions of employment . . . simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.’”

·                    Therefore, the task on a summary judgment motion is to determine whether “a reasonable jury might find [the situation] to be so out of the ordinary as to meet the severe or pervasive criterion.” Which is where the rubber met the proverbial road in Sunbelt Rentals.

Primarily citing the repeated instances of comments that offended Ingram’s faith and appearance, the “anti-Muslim crudities” that connected Ingram and Muslims in general with violence and terrorism, and the testimony of others – especially two Muslim customers who had similar experiences of anti-Islamic hostility at defendant’s offices – the Court simply had enough.

Succinctly observing that “[n]ames can hurt as much as sticks and stones,” the Court emphasized the “cumulative effect” of the epithets and summarily rejected defendant’s attempted argument that the crudities should be discounted because the work environment was “inherently coarse” or that Ingram wasn’t singled out since other employees also had their time cards sometimes hidden as an apparent prank. And because Ingram had complained about the harassment on multiple occasions, both verbally and in writing, only to have no corrective action taken, the Court imputed potential liability to the company. Helping the process was its observation that a jury could find defendant had practiced “something akin to willful blindness” in not finding a condition that needed to be promptly remedied.

   So what’s the bottom-line lesson? That words matter – and the more words there are, the more they matter. If the words are discriminatory and harassing by nature, then employers run a significant risk of also having a jury hear them if they’re not quickly stopped.

Unlike “sticks and stones” that’s not exactly a rhyme intended for kids. But it is a statement for adults and employers that should definitely be understood.

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Ken Carlson is a partner with the law firm of Constangy, Brooks & Smith, LLC, in Winston-Salem, North Carolina. He represents management only in various aspects of employment law, as well as in trade secret and noncompete litigation. In addition to a J.D. degree from the Wake Forest University School of Law, Ken holds a Master of Divinity degree from Yale University and occasionally writes about religion.