The Sixth Circuit's decision in Berryman v. SuperValu Holdings, Inc., clarifies that the "totality-of-the-circumstances" test used in hostile work environment cases does not have to be based on what the individually employee actually experiences, but rather what the individual employee is aware of.

In the case, eleven current and former SuperValu warehouse employees alleged that over a twenty-five year period, they were exposed to a racially hostile work environment that included vulgar graffiti, overtly racist comments by coworkers, and racially motivated pranks. The district court tossed out the employee's claims out finding that while the acts were reprehensible, they did not amount to a hostile work environment. The Sixth Circuit affirmed the lower court and in doing so clarified what can be considered in the "totality-of-the-circumstances" test.

By way of relevant background, to prevail on a hostile work environment claim, a plaintiff must show that his work environment was both objectively and subjectively hostile. In evaluating hostile work environment claims, courts look at the totality of the circumstances and consider things like the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

Oftentimes plaintiffs want to rely on instances of discrimination/harassment that happened to other employees, but not to them personally. Whether or not the experiences of co-workers are relevant is a common dispute among counsel in defining the scope of discovery in these types of cases. On one end, plaintiffs typically argue that courts should consider all employees complaints in the aggregate to show a hostile environment, regardless of whether the individual plaintiff was actually aware of the other incidents or not. On the other, employers typically argue that courts should only consider the actual experience of the individual plaintiff.

The Sixth Circuit declined both approaches in favor of a middle-of-the-road approach and found that: "a plaintiff does not need to be the target of, or a witness to harassment in order for us to consider that harassment in the totality of the circumstances; but he does need to know about it." In coming to this conclusion, the court noted that an employer could create a hostile work environment by directing discriminatory acts or practices at a protected group of which the plaintiff is a member, and not just at the plaintiff personally. The decision, however, does make clear that a plaintiff does have to be aware of the allegedly discriminatory acts or practices directed at others in order to use such evidence in the plaintiff's individual case. Thus, for the plaintiffs to be able to use their collective experiences in the aggregate, they would have had to "marshal basic evidence to show that they were individually aware of the harassment experienced by other plaintiffs." Here they did not.

This case demonstrates that employers cannot seek to have individual employee hostile work environment cases reviewed in a silo. Any incident of discrimination or harassment that an employee is aware of can be reviewed by courts and is thus discoverable, regardless of whether or not the employee experienced it for himself. While this case clarifies what information can be considered in hostile work environment cases, it does not necessarily broaden the scope of discovery. The relevant information is still limited to the individual plaintiff's knowledge, meaning that employers can push back on producing other employee's complaints or incidents of discrimination or harassment until such time as the plaintiff can demonstrate independent knowledge of any such complaint or incident. The court appears mindful not to extend the "aware of" allowance to mere gossip as it cited Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir. 1999) with approval as follows:

Implicit in the consideration of the totality of the circumstances is that a plaintiff was aware of the harassment that was allegedly directed toward other employees. The Jackson court said as much. It based its decision on the fact that the Sixth Circuit, in prior decisions, had “credited evidence of racial harassment directed at someone other than the plaintiff when the plaintiff knew a derogatory term had been used." The Jackson court also reasoned that “‘the fact that a plaintiff learns second-hand of a racially derogatory comment or joke . . . can impact the work environment.’” (Citations omitted and emphasis supplied).

With the use of the phrase "credited evidence," and the terms "knew," and "learns," it would appear that rumors and gossip are excluded from the type of evidence allowed in the "totality-of-the-circumstances" review, but time will tell if this is the next hot-button issue.