One of the issues most frequently litigated in employment cases is whether the remarks and actions of an employer rise to the level of the “hostile work environment” needed to support a claim of discrimination. The 10th U.S. Circuit Court of Appeals recently addressed that issue, and provided at least some clarity to the definition, adding its voice to the courts that have held that racial epithets directed at employees other than the plaintiff, and non-racial adverse actions directed at that plaintiff, both can be considered as elements of a hostile work environment if other evidence of racial animus is present. Hernandez v. Valley View Hosp. Assn., 10th Cir., No. 11-1244, June 26, 2012.
Teresa Hernandez, a Latina of Mexican heritage, was hired by Valley View Hospital Association in 2001, and began working in the food service department at that time. Beginning in 2004 and 2005, Hernandez was supervised Marc Lillas and Nicholas Stillahn, a duo of supervisors whose actions form the basis of Hernandez’ federal court complaint.
Hernandez alleges that during a fourteen month period of her employment, beginning in 2006, she was the target of a number of remarks by her supervisors based on her heritage, and that she had experienced certain incidents of non-racial derogation. Hernandez frequently complained directly to Lillas and Stillahn that she felt that the remarks were racist and demeaning. On July 20, 2007, Stillahn angrily yelled at Hernandez about the status of the cafeteria, then shoved a food cart and kicked a door in response a statement by Hernandez’s that “maybe I’m not white enough” for Stillahn. Hernandez was then suspended for that remark, and asked to be reassigned from the food service area. Her request for reassignment was denied, but Valley View’s Director of Human Resources, Daniel Biggs, offered to allow Hernandez to take FMLA leave until October 15, 2007, which Hernandez accepted. On October 12, Biggs met with Hernandez to discuss with her certain performance concerns by her supervisors that had not previously been “formally documented.” Hernandez again asked for a transfer from food services, and Biggs again denied the request. When Hernandez failed to return from her FMLA leave, her employment was terminated.
After exhausting her administrative remedies, Hernandez filed a complaint in federal court, which included racial and national origin discrimination claims based upon a hostile work environment, and a claim for constructive discharge. Valley View’s motion for summary judgment was granted by the lower court, and Hernandez appealed to the Tenth Circuit. The appellate court reversed the lower court’s decision, reinstating Hernandez’s hostile work environment and constructive discharge claims.
The lower court characterized Hernandez’s evidence as “a handful of racially insensitive jokes and comments over a period of more than three years.” However, the Tenth Circuit, while recognizing that “Title VII does not establish a general civility code for the workplace,” and that “boorish, juvenile, or annoying behavior” is insufficient to support a claim of hostile environment, found that there is not a “mathematically precise test” for a hostile work environment claim and that the term “pervasive” is not a “counting measure” that can be viewed in a vacuum. It found, instead, that Hernandez experienced more than a “handful” of “sporadic” racially derogatory jokes and comments, and that Hernandez was able to articulate at least twelve instances of racial remarks by her supervisors within a 14 month period within which Hernandez also had suffered behavior and remarks that, while arguable non-racial, had subjectively offended her to the point where she formally complained about that behavior.
The Tenth Circuit held that, viewing the records as a whole and in a “broader contextual analysis,” a reasonable jury could find that the workplace was “permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of her employment,” and reversed the lower court’s decision, sending the case forward to be heard by a jury.
While the Tenth Circuit’s opinion arguably is limited to court decisions within a particular geographic area (the Tenth Circuit encompasses Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), the rationale articulated by the Court in this case provides broader guidance to all employers. First, every supervisor must be trained to respond to complaints regarding discrimination, whether or not the supervisor agrees with the employee’s characterization of the behavior as illegal or inappropriate. To ignore such reports risks legal liability for harassment, hostile environment, or -- when the employee ultimately is fired -- constructive discharge. In addition, employers cannot assume that because the incidents allegedly suffered by an employee are few, that a court necessarily will agree with the employer’s characterization of those incidents as “sporadic” or not pervasive enough to support a Title VII cause of action. Lastly, simply because discriminatory remarks are not directed at a complainant, or because the behavior directed toward a complainant arguably is not based upon a protected characteristic, an employer cannot assume that such remarks or behavior will not become part of the complainant’s lawsuit. Here, because other evidence of racial animus existed, the Court viewed epithets directed at others, and incidents of “non-racial’ abusive behavior toward Hernandez as supportive of Hernandez’s claims of hostile work environment.