- Fifth Circuit Recognizes Age-Based Hostile Environment Claim
- October 3, 2011
- Law Firm: Ford Harrison LLP - Atlanta Office
Executive Summary: For the first time, the Fifth Circuit Court of Appeals has held that a plaintiff can pursue a claim for a hostile work environment based on age. See Dediol v. Best Chevrolet, Inc. (5th Cir. Sep. 12, 2011). If other federal appeals courts follow this reasoning and recognize age-based hostile work environment claims, more employers may find themselves involved in such litigation. Implementing policies prohibiting harassment, establishing effective complaint procedures and training employees and supervisors on these policies and procedures can help prevent costly litigation and/or provide a defense in the event of litigation.
The 65-year-old plaintiff, Dediol, was employed by Best Chevrolet as a car salesman for three months. Dediol, who was also a born-again Christian, claimed that for two of the three months of his employment, his supervisor repeatedly called him names such as "old mother******," "old man" and "pops" instead of using his given name. Dediol also claimed his supervisor made derogatory comments about his religion, such as "God would not put food on your plate" and "[G]o to your f****ng God and see if he can save your job," approximately twelve times over the two months before his employment ended. Additionally, Dediol claimed his supervisor engaged in incidents of violence and physical intimidation toward him, which culminated when the supervisor threatened to "beat the F out of" him and "charged" him in the presence of several employees. After this incident Dediol stopped coming to work and was terminated for abandoning his job.
Dediol subsequently sued the employer and his supervisor, alleging a hostile work environment based on age, religious harassment, constructive discharge and state law claims of assault. The trial court granted the employer's motion for summary judgment; however, the Fifth Circuit reversed this decision.
Hostile Work Environment Claims
Discrimination claims based on a hostile work environment have been recognized under Title VII; however, they have not been widely permitted for age claims under the Age Discrimination in Employment Act (ADEA). Although the Fifth Circuit had previously considered cases involving age-based hostile environment claims, this decision is the first time the court has expressly permitted such a cause of action under the ADEA.
In reaching this decision, the Fifth Circuit followed the reasoning of the Sixth Circuit in Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996). In Crawford, the court held that a hostile work environment claim is cognizable under the ADEA because the ADEA and Title VII share common substantive features and a common purpose - the elimination of discrimination in the workplace.1
The court in Dediol held that to advance an age-based hostile environment claim, the complaining person must establish that (1) he or she was over the age of 40; (2) the employee was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer.
As in a hostile work environment claim under Title VII, an individual claiming an age-based hostile environment must show that the complained-of conduct was both objectively and subjectively offensive. This means that not only must the individual perceive the environment to be hostile, but it must appear hostile or abusive to a reasonable person. To determine whether conduct is objectively offensive, the totality of the circumstances is considered, including: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it interferes with an employee's work performance.
Dediol's Claims Should Be Resolved at Trial
Although the court did not rule on the substance of Dediol's age-based hostile environment claim, it found that the supervisor's repeated profane references to Dediol and his almost daily "strident age-related comments," as well as evidence of the supervisor's physically threatening behavior were sufficient to create issues of fact that should be resolved at trial. Additionally, the court held that conflicting evidence regarding whether the supervisor steered certain deals away from Dediol and toward younger employees should be resolved at trial.
The court also held that Dediol could go to trial on his religion-based hostile work environment claim. "While there is no one 'smoking gun' that establishes a hostile work environment based on religion, Dediol has pled enough facts to show a pattern of smaller instances" that should be resolved at trial. •
1 The court in Crawford rejected the specific claims in that case, finding that the plaintiff failed to establish that she was subjected to a hostile work environment based on her age. 96 F.3d at 836.