By Joanna Vilos
Employees sometimes complain about undesired or harassing conduct that does not rise to a level that creates a hostile work environment in violation of Title VII. A recent federal court case in the District of Wyoming reveals how to take steps to avoid liability and how to defend against such allegations if an employee files a claim.
Hostile Work Environment Claim
As we all know, employees tend to use the phrase “hostile work environment” pretty loosely. But a true hostile work environment claim generally consists of conduct that is so severe or pervasive that it alters the terms or conditions of the individual’s employment. It also must be unwelcome conduct that is based on an employee’s protected characteristic, such as sex, religion or national origin.
On the other hand, conduct that is merely insensitive, tasteless or vulgar may not give rise to a hostile work environment claim. According to the Tenth Circuit Court of Appeals (whose cases apply to Colorado, Utah, Wyoming, Kansas, New Mexico, and Oklahoma), “Title VII’s mandate is not to ensure workplace harmony or create a finishing school.”
Whether conduct is severe or pervasive enough to support a hostile work environment claim depends on many factors, such as the frequency of the discriminatory conduct, how severe the conduct is, whether it is physically threatening or humiliating versus a mere offensive utterance, and the extent to which it unreasonably interferes with an employee’s work performance.
In a recent case in federal court in Wyoming, Carolin Miller, an administrative assistant for the Union Pacific Railroad Steam Locomotive Shop in Cheyenne, alleged that her supervisor, Edgar Dickens, sexually harassed her by:
- forcing into a seat next to Miller at a group dinner and forcefully pushing his legs against the side of Miller’s legs;
- complimenting Miller on a costume she wore to a group event and asking if he could adjust her cap, and then adjusting it;
- telling Miller that “the most unattractive woman could be wearing the same style cap and it would be a major turn on for him;”
- lingering to get his things when Miller asked Dickens to leave so she could change her clothes;
- texting Miller on her private phone to ask if she wanted to go to dinner with him alone (she declined);
- texting Miller to ask if she would join him at the train to keep him company (she declined);
- sitting next to Miller at a second dinner and again, forcibly pushing his legs into hers; and
- on multiple days, asking Miller to work late to keep him company because he “did not have a life.”
Based on that alleged conduct, Miller sued her employer alleging a sexually hostile work environment in violation of Title VII.
Claim Failed As A Matter of Law
Judge Nancy Freudenthal dismissed Miller’s hostile work environment claim against Union Pacific Railroad without holding a trial. She ruled that no reasonable jury could find that the “workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of Miller’s employment and create an abusive working environment based on Miller’s sex.” Miller v. Union Pac. R.R., Case No. 14-CV-47 (D. Wyo. June 18, 2015).
In dismissing Miller’s claim, Judge Freudenthal noted that Miller admitted that Dickens never touched her in any intimate way or private area, never used graphic or sexual language with her, and never showed her anything that was sexually offensive.
Company’s Remedial Measures
Despite finding that no hostile work environment existed, the Court briefly described the measures that Union Pacific Railroad took upon learning of Miller’s allegations – steps that helped the company avoid liability. A company representative, Donna Colley, talked to Dickens and explained that Miller believed he had acted inappropriately and Miller did not appreciate his requests that she stay late or go to dinner. Colley told Dickens to stop those behaviors. Colley also reviewed the company’s EEO policy book with Dickens and discussed the retaliation policy.
Minor Snubs Were Not Retaliation
Miller also alleged that Dickens retaliated against her after she made the sexual harassment complaint. She alleged that her office was moved to a toilet/closet room, she was ostracized by management, some of her job duties were taken away for no reason and Dickens sent her home for two days.
Noting the U.S. Supreme Court’s recent decision explaining that Title VII retaliation claims require that the desire to retaliate be the “but-for” cause of the challenged employment action, Judge Freudenthal ruled that Miller failed to establish a retaliation claim. Notably, she found that some of the alleged retaliatory conduct did not constitute an adverse employment action at all. For example, the suggestion that Miller work out of a break room instead of sharing office space with Dickens came from the company’s EEO officer who was attempting to provide Miller with some distance from Dickens in light of her claims that he was sexually harassing her. Because the suggestion was not mandatory but instead was just an option, the court determined that it was not an adverse employment action.
As for Miller’s claims that Dickens was unfriendly, failed to respond to her emails and was “generally unpleasant” to her after she filed her complaint, the court found that such behavior was only a minor slight or snub that was not actionable under Title VII.
The court noted that Miller’s salary and benefits did not change after she filed her harassment complaint. Her vagueness about what job duties were taken away from her and the fact that Miller voluntarily chose to take a couple days off also undermined her retaliation claim. The court also noted that because Miller’s time off occurred approximately two months after her harassment complaint, Miller failed to establish a causal connection that would support a retaliatory motive. The court ultimately dismissed all of Miller’s claims, including her retaliation claim, in their entirety.
Practical Steps When Facing Less Severe or Pervasive Allegations
In order to avoid liability for a hostile work environment, you must take steps to stop and remedy the unlawful harassing behavior. But what should you do when the complaint involves relatively minor conduct, or behavior that is not based on a protected characteristic?
First, investigate it. Even though the initial report may involve conduct that you don’t believe rises to the level of a legal violation, you still need to find out the full extent of the conduct. Engage in a thorough and timely investigation by interviewing the individuals involved as well as potential witnesses. Obtain any supporting evidence, such as videos of the workplace, diaries or other documents that may shed light on the allegations. Make sure you have the facts before deciding if any action needs to be taken.
Second, if you conclude that the conduct may have been sufficiently severe or pervasive so as to create a hostile work environment, take appropriate steps to stop it immediately and impose appropriate discipline in accordance with your policies.
If, however, you question whether the conduct was severe or pervasive enough to create a hostile work environment, your best practice is to take steps to defuse the situation and put a stop to any unprofessional conduct. Without going into detail about any actions you’ve taken toward other employees and any specific statements made by other employees, talk to the employee who reported the alleged harassment and give a general overview of the outcome of your investigation. Emphasize to the reporting employee that your organization takes such reports seriously and you want to know immediately if any inappropriate conduct continues or escalates. If appropriate, offer any viable options that may make the employee feel more comfortable, such as changing work areas or shifts to reduce contact between the employee and the perceived “harasser.” Just be careful not to make any mandatory changes that could be construed as an adverse employment action that would give rise to a retaliation claim.
Be sure to talk to the alleged “harasser” as well. Let him or her know the conclusions you’ve reached in your investigation (again, without divulging confidential details) and any company policies that may come into play. Identify any behavior that may be having a negative effect on the workplace and remind the individual that neither discriminatory harassment nor retaliation will be tolerated.
Third, follow up periodically to ensure that no inappropriate behavior is occurring. Keep your eyes and ears open and check in with the employee who was feeling harassed. If any new allegations surface, investigate them. As always, be certain to document your remedial efforts.
Deciding whether conduct is sufficiently severe or pervasive to result in liability is not always an easy determination. And, truth be told, if inappropriate or unprofessional conduct is occurring in your workplace, you have reason to take action to put a stop to it even if it might not rise to the level of a legal violation. Follow the steps above to show that you treat all reports of inappropriate conduct seriously and do not tolerate conduct that creates a hostile work environment. In the end, you may not be able to stop employees from pursuing their claims in court, but you will have taken the necessary steps to defend against them and help avoid liability.
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