Federal employment law protects against a number of different types of discrimination, including treating employees differently because of age, gender, or race.
More and more often, employees bring discrimination claims based on harassment, rather than (or in addition to) claims based on employer decisions that appear to be discriminatory.
However, an employee can only bring a harassment claim under federal law if the employer has engaged in "discriminatory intimidation, ridicule, and insult" that was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
So when does discriminatory “insult” become so pervasive that it alters the working environment?
According to the Supreme Court in Harris, it depends on “all the circumstances.” How severe is the conduct? Is it physically threatening? Does it unreasonably interfere with performance? Was the employee psychologically harmed? All of these factors can be taken into account.
For example, in a recent case, a panel of appellate judges split over whether the plaintiff—an African-American woman—had successfully alleged a hostile work environment based on her treatment at the hands of union representatives. Phillips v. UAW Int’l, No. 16-1832 (6th Cir. Apr. 12, 2017).
The plaintiff relied on a series of incidents over two years involving union representatives, including statements that there were “too many blacks in the union,” that another union member was “big and black,” and that the union needed a “black on staff to calm it down.”
A majority of the U.S. Court of Appeals for the Sixth Circuit decided that while these statements were “offensive and condemnable,” they were “not actionable as a hostile work environment.”
Isolated remarks or incidents, unless they are extremely serious, don’t amount to discrimination. Here, the plaintiff had only identified a “a handful of offensive comments and an offensive meeting over a two-year period.” As a result, the plaintiff was not entitled to have a jury decide her discrimination claim.
Judge Merritt, dissenting, wrote that the plaintiff had “clearly made out a case against the union of creating a hostile, racially discriminatory workplace.” He emphasized that the jury, not the court, should decide whether the agents’ harassment was so pervasive that it constituted a hostile work environment.
The Phillips decision shows that there is plenty of room for disagreement over whether offensive conduct rises to the level of a hostile work environment. Although courts can sometimes rule in favor of employers on this issue, that doesn’t mean that employers should overlook offensive behavior. Employers need to adopt an effective anti-harassment policy and act quickly to put an end to inappropriate comments that might later support a harassment claim.