Tenth Circuit Takes Broad View of What Constitutes Harassment

By | July 2nd, 2012 | General

Finding the line between the “general civility code” that the Courts have repeatedly stated was not established by Title VII and “illegal harassment” has caused many an employer headache and spawned considerable litigation. Last week, the Tenth Circuit helped shed some light on the analysis to conduct to determine if certain actions have crossed that line.

Teresa Hernandez was working in the food service department of Valley View Hospital Association. She claims to have been subject to racially derogatory jokes and comments about her Mexican heritage, despite her complaints that the remarks were offensive and racist. After being screamed at one day by her supervisor about how the cafeteria looked the previous day, she responded, “maybe I’m not white enough.” This comment got her suspended, but not after she complained to HR that her suspension was discriminatory because other (non-Latinos) had made racially offensive jokes and weren’t suspended. Later that day, the HR Coordinator to whom Ms. Hernandez had complained sent the HR Director an email indicating the Ms. Hernandez’s supervisors didn’t want “that type of person working here” anymore and that the HR Coordintaor had instructed Ms. Hernandez’s immediate supervisor to “get his ducks in a row” and write Ms. Hernandez up for job performance issues (which were purportedly legitimate but previously not documented). Ultimately Ms. Hernandez was terminated and she sued the Hospital.

The Hospital claimed that there were only “a handful of racially insensitive jokes and comments” over the entire three year period in which Ms. Hernandez worked for it. Relying on their argument that these few incidents were insufficient to show “a pervasively hostile work environment”, the Hospital was granted summary judgment by the district court. Ms. Hernandez appealed.

The Tenth Circuit reversed, finding that the district court had gotten the analysis wrong. First, the Court found that there is no “mathematically precise test” to determine how many racially-motivated jokes/comments triggered liability. Instead, the Court looked at the environment at a whole – which included not only the racially-motivated jokes/comments, but also seemingingly neutral conduct that could support a finding of racial animus only when viewed in the context of the overtly racially-discriminatory conduct. The Court also recognized that derogatory comments need not be actually directed at or intended to be heard by the victim to be potential evidence of a hostile work environment. The Court found that when looking at the racially-motivated comments directed at others and the facially neutral, yet offensive, behavior in light of at least a dozen racially-derogatory jokes/comments actually directed at Ms. Hernande, there was sufficient evidence to support her claim of a hostile work environment.

What does this mean for employers? It means, first, that your employment policies should be encompass not only offensive behavior that is motivated by an individuals race, sex, national origin, etc., but all potentially offensive behavior. Second, it bears noting that the employer in this case teed up a retaliation claim nicely (although that claim was procedurally barred) when it waited until Ms. Hernandez complained to HR to start “documenting” her past performance issues and noted in writing that it was doing so for the express purpose of terminating Ms. Hernandez. Employers should always document performance issues as or shortly after they occur and never wait to start documenting once the individual has engaged in protected activity like making a complaint of discrimination! If you need assistance drafting a harassment policy, training supervisors and/or employees on that policy, or how to appropriately document performance issues, the attorneys at Employers Legal Resource Center can help. Contact us at 405-702-9797.

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