?Takeaway: To prove hostile environment sexual harassment, an employee must show more than that her co-workers were unkind to her. The objectionable conduct must be frequent and severe and it must interfere with the employee’s work performance.
A server who worked at a casino cafe failed to show sexual harassment in violation of Title VII of the federal Civil Rights Act of 1964, despite her claim that her co-workers mistreated her for taking lactation breaks, a federal appeals court ruled. The employee introduced no evidence that the alleged harassment resulted from her need to take the breaks. Furthermore, the level of mistreatment the employee claimed occurred would not constitute harassment or a hostile work environment under Title VII, the court concluded.
The employee worked as a server at a casino cafe. All servers at the cafe were provided a mandatory 30-minute break and two additional optional 15-minute breaks during their shifts. For each shift, one of the servers would serve as a “breaker,” who was responsible for relieving each server for the employee’s break. The breaker worked on a schedule, relieving those who started earliest in the shift and rotating to those who arrived later.
After the employee returned to work from maternity leave, she requested two 30-minute to 40-minute lactation breaks. At first, she did not request that her breaks occur at any particular time. Her request was approved, and she received access to a locked lactation room. She typically received her first break according to the breaker schedule and her second break after the breaker relieved the other servers. The employee took either two 30-minute breaks or one hourlong break each full day she worked.
Two months after her return from work, the employee requested a modified accommodation, seeking two 45-minute breaks at specific times—the first at 10 a.m. and the second at 1 p.m.
Management granted the request for an accommodation. When the breaker was unable to accommodate the employee’s schedule, one of the managers would step in and cover her tables or close her section so she could go on her break.
The employee claimed that her co-workers began to harass her as a result of this new break schedule. She described various instances in which co-workers got frustrated with her for wanting to leave early or for taking her breaks. She claimed that her co-workers did not want to work with her and that they made negative comments to her about her lactation breaks.
The employee quit her job about a month after she requested the new schedule. She subsequently filed a Title VII lawsuit alleging sexual harassment, among other claims.
The trial court dismissed the harassment claim before trial, ruling that the employee did not present sufficient evidence to support her claim. The employee appealed.
Proving a Hostile Work Environment
The appellate court first noted that in order to prove a hostile work environment or sexual harassment, the employee must show discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. The court concluded that the employee failed to show both that the alleged harassment was based on sex in that it occurred because of the lactation breaks and that the alleged harassment affected a term, condition or privilege of the worker’s employment.
The appellate court noted that the employee provided no evidence regarding who said what or how often, nor how this treatment was related to her needing to take lactation breaks. All the court had was the employee’s own account, unsupported by other evidence. Her subjective beliefs as to the motivations of others are insufficient, the court said.
Additionally, the level of mistreatment the employee claimed occurred would not constitute harassment or a hostile work environment under Title VII, the appeals court said. For conduct to be sufficiently severe or pervasive, it must be both objectively and subjectively offensive, the court explained. To determine whether the work environment is objectively offensive, the court considers the totality of the circumstances, including the frequency and severity of the discriminatory conduct and whether it interferes with an employee’s work performance. No single factor is determinative.
The employee’s allegations did not support a finding that the conduct was objectively severe, the court said. At worst, her co-workers were unkind to her, and she had difficulty working with some of them. The picture she painted was not of a hostile or abusive working environment as evaluated by the totality of the circumstances, the appeals court concluded.
Bye v. MGM Resorts International Inc., 5th Cir., No. 22-60034 (Sept. 28, 2022).
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.
