?Takeaway: For sexual or racial harassment to be actionable, the conduct complained of need not be severe if it is pervasive. Use of racial slurs, even if undirected at anyone specific, can contribute to a hostile work environment.
?A Black employee could go forward with her claims of hostile environment sexual and racial harassment, a federal appellate court ruled. The court overruled a trial court decision that the incidents cited by the employee, including frequent comments of a sexual nature, comments calling Black women derogatory names and one use of the “n-word” by an employee telling a story, were not enough to establish a hostile environment.
In 2006, the employee was hired as a salesperson at a life insurance company. She worked there for four years. She alleged that, during her time with the company, she was subjected to sexual and racial harassment sufficient to establish a hostile environment. She sued the company, but the trial court dismissed the harassment claims before trial, and the employee appealed.
Hostile Work Environment
The appeals court initially noted that for the employee to be able to proceed with hostile environment claims, she first must show that the employer discriminated against her because of her race and/or sex. Second, she must demonstrate that the discrimination was sufficiently severe or pervasive such that it altered the terms or conditions of her employment and created an abusive working environment.
To prove severity or pervasiveness, an employee must subjectively and objectively perceive the harassment. This means the employee must: 1) subjectively perceive the conduct to be severe or pervasive and 2) show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule and insult.
A court analyzes severity and pervasiveness by looking at the totality of the circumstances and considers such factors as:
- The frequency of the discriminatory conduct.
- Its severity.
- Whether it is physically threatening or humiliating, or a mere offensive utterance.
- Whether it unreasonably interferes with an employee’s work performance.
A few isolated incidents of discriminatory conduct and juvenile or annoying behavior that is not uncommon in American workplaces are insufficient to support a claim for hostile work environment, the court noted.
Sex-Based Hostility
In support of her claim of sexual harassment, the employee cited an incident occurring at an offsite work party, when one of the company’s vice presidents held a vodka bottle horizontally in his pelvic region, thrusted it at her and told the employee to get on her knees. The employee said she was so humiliated, she left the party.
She also alleged that she was repeatedly asked sexually explicit questions. She said sexist remarks were made on the sales desk on a daily basis, with male employees regularly commenting on how tight women’s clothes were, whether they were gaining weight and the size of their breasts.
On these facts, the appeals court said, a reasonable jury could find that the company maintained a work environment where harassment was sufficiently severe or pervasive such that it altered the terms or conditions of the worker’s employment and created an abusive working environment. Therefore, the sexual harassment claim could proceed to trial.
While the trial court had concluded that the employee introduced evidence that the conduct was sufficiently pervasive to create an actionably hostile work environment, it also said the employee failed to show that the conduct was sufficiently severe to meet the hostile work environment test of intimidation, ridicule and insult sufficient to alter the conditions of a worker’s employment.
This was a mistake by the trial court, the appeals court said. Proof of either severity or pervasiveness can serve as an independent ground to sustain a hostile work environment claim.
The court then rejected the employer’s claim that the fact that the employee continued to advance at the company meant the conditions of her employment weren’t affected for the worse. The law, the court said, does not require an employee to show that the discriminatorily abusive work environment seriously affected psychological well-being or that it tangibly impaired work performance.
The criterion is not what a reasonable female employee is capable of enduring, but whether the offensive acts alter the conditions of employment, the appeals court explained.
Race-Based Hostility
The employee claimed that the company managers called her and the other Black female employees derogatory names such as “bitches,” “divas,” “resident streets walkers,” “Black b****es from Atlanta,” and “Black Panthers.”
She also claimed that a white woman used the “n-word” in front of her while telling a story. The trial court had ruled that this was not enough to allow the racial harassment claims to proceed to trial because she had not heard all of the derogatory comments, some of which were directed at other Black women, and that the woman using the slur was not acting with racial animus.
The trial court concluded that the employee had experienced isolated incidents of racial enmity or sporadic racial slurs that were insufficient to establish a triable issue of fact of a hostile work environment.
The appeals court disagreed. When viewing the totality of the employee’s evidence, including the names she was called and the use of the racial slur, it said, “we conclude that a reasonable jury could find that [the employee] experienced a severe or pervasive hostile work environment on account of her race.”
The “n-word” is a powerfully charged racial term, the court noted. Its use—even if undirected at anyone specific—can contribute to a hostile work environment, the court said.
Ford v. Jackson National Life Insurance Co., 10th Cir., No. 21-1126 (Aug. 23, 2022).
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.
