Legal

Some Harassment Shouldn’t Be in the Eye of the Beholder

By Jon Hyman

Mar. 6, 2015

A hostile work environment is hostile for one of two reasons — the alleged misconduct is either severe (overtly offensive), or pervasive (repeatedly offensive). The more severe the misconduct is, the less pervasive it has to be.

In this context, consider the following from Satterwhite v. City of Houston [pdf], in which the 5th Circuit affirmed the dismissal an employee’s retaliation claim:

Satterwhite asserts that he engaged in two distinct protected activities: (1) making an oral report to human resources that Singh used the phrase “Heil Hitler” in a meeting, and (2) answering questions in connection with the OIG’s investigation of the “Heil Hitler” incident. While Satterwhite’s actions could qualify as opposing …, for his actions to be protected activities Satterwhite must also have had a reasonable belief that Singh’s comment created a hostile work environment under Title VII.

No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Furthermore, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII. We have accordingly rejected numerous Title VII claims based on isolated incidents of non-extreme conduct as insufficient as a matter of law.

Thus, in Texas, Mississippi, and Louisiana, “Heil Hitler”  is “non-extreme conduct” (insert Southern joke here).

Two points to make.

  1. Some harassment shouldn’t be in the eye of the beholder. (Warning, offensive language ahead). Nazi jokes/comments should be sufficiently severe to raise the specter of Title VII’s protections against religions harassment. Similarly, utterances of overtly offensive terms like “nigger,” “kike,” or “cunt” should, in nearly all cases, suffice to state a claim under Title VII. There is no excuse for this stuff in the workplace. Period.

  2. If you have any doubt about point number one, it’s time for some harassment and EEO training in your workplace (which is a good idea annually anyway).
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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