The United States Court of Appeals for the Fifth Circuit recently confirmed that an employer can be liable for allowing or failing to prevent age-based harassment. Milan v. Dediol v. Best Chevrolet, Inc., et al., No. 10-30767 (5th Cir. September 12, 2011). The decision reminds employers of the need to take steps to prevent and stop harassment based on any characteristic protected by law.

Background

Milan Dediol filed suit against his former employer, Best Chevrolet, Inc., alleging that during his three-month-long employment as a car salesman he was subjected to a hostile work environment based on his age. Dediol, who was 65 years old at the time, alleged that during the course of his employment, his supervisor regularly called him, among other things, “pops” and “old man.” Dediol also alleged that his supervisor made a number of physically threatening gestures toward him and directed car sales to younger employees.

Finding his work environment intolerable, Dediol ultimately resigned from his position and sued Best Chevrolet and his former supervisor, alleging violations of the Age Discrimination in Employment Act (ADEA).1 The U.S. District Court for the Eastern District of Louisiana granted summary judgment in favor of Best Chevrolet, and Dediol appealed the lower court’s decision to the Fifth Circuit.

Fifth Circuit Recognizes Hostile Environment Claim Based on Age

In analyzing Dediol’s claims, the Fifth Circuit began by noting that in prior decisions, it never “expressly adopt[ed] a cause of action for hostile work environment based on the ADEA.” However, recognizing the decisions of a number of sister courts which allowed for such a claim, the court concluded that a “plaintiff’s hostile work environment claim based on age discrimination under the ADEA may be advanced in this court.” Continuing its analysis, the court concluded that based on the nature of Dediol’s allegations, he could proceed with his claims of hostile work environment and constructive discharge against his former employer.

What the Decision Means for You

Frequently, employers consider “harassment” and “hostile work environment” as terms only applicable to workplace conduct involving gender. However, as Best Chevrolet illustrates, employers should be aware that employees subjected to inappropriate conduct based on any characteristic protected by law – including age, gender, race and national origin – may bring hostile work environment claims. Employers should also be aware that depending on the jurisdiction in which they do business, state and local statutes can create additional protected characteristics not recognized under federal law, such martial status, political affiliation and matriculation.

To protect against hostile environment claims based on protected characteristics other than gender, employers should:

  • Adopt and communicate a clear policy stating that harassment based on any legally-protected characteristic will not be tolerated.
  • Provide a clear and accessible mechanism for employees to complain about harassment. Make clear that you will investigate complaints, that you will take disciplinary action against harassers and that you prohibit retaliation against employees who complain about harassment.
  • Train all employees regarding your anti-harassment policy and procedures.
  • Investigate harassment claims, take appropriate action (including discipline) to stop any harassment you uncover, and appropriately document your response to the complaint.