- Comments Can Create Hostile Work Environment
- February 13, 2015
- Law Firm: Shawe Rosenthal LLP - Baltimore Office
The U.S. Court of Appeals for the 4th Circuit recently held that inappropriate comments may create a sexually hostile work environment in violation of Title VII.
Background: In Walker v. Mod-U-Kraf Homes, LLC, a female employee was subjected to sexually inappropriate comments from two co-workers on a near-daily basis. She and other female co-workers who were also targeted for such comments complained to the “lead” co-worker, in accordance with Company procedure. The employee made such complaints on a weekly basis, and always received the same response - to ignore it. The lead did not address the conduct with the harassers or notify the supervisor about the complaints. The employee then began complaining weekly to her supervisor. The supervisor spoke to the primary harasser, who limited his comments for a short time, but then resumed the harassing behavior.
The employee and her boyfriend, who was also an employee, finally confronted the primary harasser. The employee poked or punched her fingers into the harasser’s chest, while her boyfriend stood behind her holding a hammer in a threatening manner. The altercation was broken up by management. The employee and her boyfriend were subsequently both terminated for initiating a physical altercation.
The employee sued, claiming hostile work environment harassment and retaliation for being fired after complaining of the harassment. The U.S. District Court granted summary judgment to the employer, thereby dismissing the employee’s claims. It found that the complained-of conduct, although “boorish” and “moronic,” was not sufficient to create a hostile work environment under the standards set forth by the 4th Circuit in prior cases. The district court noted that cases in which hostile environment harassment was found involved touching, propositioning, or threatening the victim, or the demonstration of sexual acts - none of which were involved in the present case. The district court further found that there was no retaliation in her termination, for which the employer had articulated a legitimate, non-discriminatory reason - the employee’s physical assault of another employee.
The Court’s Ruling: On appeal, the 4th Circuit reversed the district court’s dismissal of the hostile work environment claim. The 4th Circuit reiterated that hostile environment sex harassment requires conduct that is “sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive atmosphere.” Emphasizing that this is a factual determination that “depends on a constellation of surrounding circumstances, expectations, and relationships,” the 4th Circuit stated that summary judgment is appropriate where it is clear the facts are insufficient to satisfy the “severe and pervasive” standard. The 4th Circuit noted that actionable harassment, however, need not involve touching or be physically threatening; it can involve “humiliating and demeaning” conduct. In this case, the 4th Circuit determined that the alleged facts - the comments of varying degrees of offensiveness made to the plaintiff and other co-workers for well over a year, and the limited action taken by the employer in response to the repeated complaints by these women - presented a close question that should be decided by a jury rather than by the court.
With regard to the retaliation claim, however, the 4th Circuit agreed with the district court that the employee could not demonstrate that employer’s proffered reason for her termination - the physical assault - was a pretext for discrimination.
Lessons Learned: Employers should be careful to train those in “lead” roles, as well as managers, on what is harassment and what their response should be to complaints of harassment. Part of that training should include discussion of the fact that verbal conduct alone may be sufficient to create a hostile environment in violation of the law.