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Legal Speak

Employment Discrimination Cases

Published October 23, 2013 3:09 PM by Tony DeWitt
Employment discrimination cases can be broken down into two separate categories. Hostile work environment claims are based on the environment in the workplace. An environment is hostile if the atmosphere created is one that a reasonable employee feels is hostile on the basis of a protected status. A protected status is age, sex, race, religion or pregnancy. A boss who ran around using four-letter words to describe women would be considered to create a hostile work environment.

Discriminatory treatment is the second category, and it is broken into two subdivisions. Disparate treatment means that people of a particular class (older workers, for example) are treated differently than others. Disparate impact looks at policies that are themselves neutral (for example, requiring men to be clean-shaven) but that have a disparate impact on a particular group of employees (for example, Amish men, or Hassidic Jews whose religions require they wear beards).

The law as announced by the Supreme Court at first blush looks pretty favorable toward employees. The Supreme Court has said that to be actionable under Title VII as a hostile work environment, the conduct need not seriously affect an employee's psychological well-being or lead the employee to suffer injury. All it must do to meet the standard is show an objectively hostile or abusive environment as well as the victim's subjective perception that the environment is abusive. Courts are directed to consider all the circumstances, not any one factor, in making this determination.

But many courts honor the letter of the law while ignoring its spirit. In one case the plaintiff asserted that her boss inappropriately pressured her to go on dates and made sexual advances toward her on two occasions. The court found that just two incidents were insufficient to create a hostile work environment. It then went on to note "The conduct is also not severe enough to overcome the element of infrequency. Sexual assault, for example, is the type of conduct that is severe enough that even one episode may be sufficient to establish a hostile work environment." The Court's insensitive suggestion that a woman need allege a sexual assault to state a claim for hostile work environment is difficult to accept in the 21st century.

In another case based on racial discrimination, an employee alleged that her African-American friends were consistently peppered with racial epithets at her plant, and that this created a hostile work environment not only for African-Americans, but also for those who were friends with and who supported them. The Court rejected this claim because the epithets were not directed at the plaintiff.

In one district court case in the District of Columbia, the court held that to state a claim under a hostile work environment theory, the harassment had to be so severe or pervasive as to "constructive[ly] alter[ ] ... the terms or conditions of employment," and that it required "careful consideration of the social context in which particular behavior occurs." Noting the standard set by the Supreme Court, the court simply ignored it. It said the standard for a hostile work environment requires that conduct be severe or pervasive, but that "courts generally find actionable claims only where the conduct is both quite severe and pervasive." The court continued by saying that "in our circuit, even multiple instances of physical contact and sexual advances may not be sufficient to meet the demanding legal standard for a hostile work environment." If this wasn't bad enough, the Court said that "incidents involving only verbal comments, particularly by co-workers, must generally be quite pervasive and severe to be actionable." The court simply forgave multiple sexual advances and crude speech by saying "it only happened once and wasn't repeated."

Cases like these are why most plaintiff's lawyers will not take a sexual or racial discrimination case. The lower courts refuse to be guided by the Supreme Court's standards, impose their own views of the law, and generally decide what is and what is not sufficient to establish harassment.

Disparate impact issues are not much different, and are the subject of my next blog.

posted by Tony DeWitt


I have a 5 year documented pattern of serious, verbal abuse from 3 different supervisors that created a hostile work environment, these incidents all took place when I was 42-46 years of age. I also allege discrimination due to an accomodation made from the Americans with Disabilities Act! The Management Team has a Legal obligation to ensure no Disparate Treatment, repeated abusive verbal harrassment comes from the supervsors!

john, warehouse - labor, ft wayne November 23, 2014 8:54 PM
ft wayne IN

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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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