Tag Archives: hostile work environment

March 16, 2016

Muslim Teacher May Proceed With National Origin Hostile Work Environment Claim

Hobbs-Wright_EBy Emily Hobbs-Wright

A Turkish-born Muslim teacher claimed that her school had a culture of racial and ethnic hostility. The Tenth Circuit Court of Appeals (whose decisions apply to Colorado, Utah, Wyoming, Kansas, Oklahoma, and New Mexico) recently ruled that her complaints of national origin discrimination may move forward, offering lessons in how to handle cultural differences in the workplace.

School Principal Made and Allowed Insensitive Comments

Zeynep Unal worked as an elementary teacher in the school district’s gifted and talented program for about four years before the district hired Katheryn Vandenkieboom as the principal at Unal’s school. Born in Turkey, Unal spoke with a distinct Turkish accent and was the only foreign-born teacher at the school. Prior to Vandenkieboom’s arrival, Unal was considered a good teacher and received regular positive reviews.

According to Unal, Vandenkieboom made numerous hostile comments to her and allowed other school staff to do the same. When Vandenkieboom and other faculty began discussing an American movie in the faculty lounge, Vandenkieboom, in front of the staff, told Unal “You wouldn’t know about this. You are not from here.” During an after-school Christmas concert, Vandenkieboom thanked various teachers for being at the concert but then approached Unal to ask, “what are you doing here?” despite Unal’s own child participating in the concert. Vandenkieboom also would correct Unal’s pronunciation in front of staff. Another staff member once called Unal “a turkey from Turkey,” but later apologized.

Unal alleged that Vandenkieboom and her staff also made insensitive remarks about other nationalities, such as repeatedly referring to a Vietnamese family as the “little people,” and openly joking about an Asian family’s surname, Fu, by turning it into the crude insult, “F.U.” The office staff also made announcements over the school’s intercom system while faking foreign accents and then laughing about it.

Unal Alleged A Hostile Work Environment Based On National Origin

Unal sued the school district, its superintendent, and principal Vandenkieboom for, among other things, a violation of Title VII on the basis of a hostile work environment based on her national origin. The parties agreed that she was subject to some unwelcome harassment, but her employer argued that the harassment was not based on her national origin and was not sufficiently severe or pervasive to demonstrate a hostile work environment. The district court agreed with the school district, granting it summary judgment on Unal’s claims. But on appeal, the Tenth Circuit overturned that ruling, sending it back for trial.

Title VII Is Not A “General Civility Code”

The Tenth Circuit panel noted that Title VII is not a “general civility code.” In order to proceed to trial, Unal needed to show that a rational jury could find that the workplace was “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.”

Evidence of Harassment Supported Claim

Unal needed to show that the harassment was based on a discriminatory animus toward her national origin. Evidence of such animus directed toward Unal’s specific nationality is the strongest evidence, but the Court noted that incidents of harassment of other nationalities could also be considered in evaluating her claim.

The Court found that Unal provided evidence that some comments were directed toward her own nationality. Such comments included Vandenkieboom’s question as to why Unal would attend a school Christmas concert while thanking other teachers who attended, Vandenkieboom’s exclusion of Unal from the faculty lounge discussion of an American movie because she was “not from here,” and another staff member’s comment that Unal was a “turkey from Turkey.” Though each comment was not necessarily supportive of a hostile work environment claim, the Court found that taken together, they were intended to negatively emphasize Unal’s status as a foreigner.

The Court also determined that comments directed to other nationalities, such as the derogatory remarks made about the Vietnamese and Asian families, as well as making school announcements with feigned foreign accents, support an inference that the school’s administration permitted a culture of animus toward foreign-born individuals.

In addition, the Court gave weight to several incidents where seemingly neutral conduct resulted in Unal being treated differently than other teachers. For example, Vandenkieboom solicited negative feedback about Unal from a substitute teacher but did not do so with respect to any other teachers. Vandenkieboom also discounted Unal’s expertise in the gifted program, excused other teachers from attending Unal’s meetings while not excusing attendance at other teachers’ meetings, and letting months pass before assigning an instructional assistant to help Unal while assigning an assistant to another teacher in only a week. Even though these events were not discriminatory on their face, the Court viewed them in relation to the totality of the circumstances and determined that a reasonable jury could conclude that those events were the result of a larger environment of hostility based on national origin.

Close Case On Severity or Pervasiveness

The conduct alleged by Unal as creating a hostile work environment occurred over a three year period. While noting that there is no “mathematically precise test” to determine whether harassment is sufficiently severe or pervasive to have altered a term, condition, or privilege of employment, the Court concluded that Unal met that standard. Calling it a close case, the Court viewed the totality of the circumstances of Unal’s allegations and found that a reasonable jury could find that Unal was subjected to unwelcome harassment based on her national origin that created an abusive work environment.

Handling Diverse Employees

By allowing this case to proceed to trial, the Court sent a strong message to employers to clean up a workplace culture that excludes or segregates workers based on their national origin, or creates hostility toward employees from other countries. Jokes, name-calling, correcting pronunciations, and other conduct that treats individuals differently because of their name, accent, appearance, food or music preferences, religious observances, or traditions can lead to a hostile work environment claim.

To avoid hostile work environment claims based on national origin, take these steps to make sure your managers and staff understand what is, and is not, acceptable behavior at work:

  • Make sure your harassment policy prohibits unlawful conduct based on all protected characteristics, not just sexual harassment.
  • Provide examples of unacceptable conduct in your harassment policy, including conduct that targets workers on the basis of their national origin, religion, or ethnicity.
  • Require all employees to review and acknowledge your harassment policy at least annually.
  • Train management to recognize and stop such conduct before it becomes severe or pervasive.
  • Promptly investigate any complaint of workplace harassment and take steps to correct improper conduct so that it doesn’t happen again.

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January 19, 2016

An Uncomfortable, But Not Hostile, Work Environment

Cave_BBy Brad Cave

Certain workplace behavior may be unusual, uncomfortable or downright weird, but may not be unlawful. Do you want to take the chance of knowing what crosses that line?

Imagine receiving this complaint from an employee: “My supervisor frequently compliments my appearance, clothing and cologne. He touched my back and buttocks, claiming he was showing me where he was experiencing back pain. He instructed me to participate in two body-fat contests requiring me to wear a speedo where he again complimented my appearance and tried to touch my buttocks. He repeatedly asked me to join him for drinks during a company event.”

Do these allegations suggest a hostile work environment? Would your company be liable for sex discrimination?

Real Case Offers Guidance

These facts arose in an actual lawsuit filed by Bryan McElroy, a former district sales manager for American Family Insurance (AFI). McElroy was fired by his supervisor, Tony Grilz, after failing to meet sales goals and engaging in insubordinate behavior. After his termination, McElroy filed a charge with the Equal Employment Opportunity Commission (EEOC) and later filed suit in federal court, alleging, among other things, that he was subjected to a hostile work environment based on the above-recited behavior by Grilz.

Uncomfortable Work Behavior

The federal court acknowledged that “some of Grilz’s conduct could make many people uncomfortable.” But the district judge ruled that the conduct did not rise to the level of being so objectively offensive that it created a hostile or abusive work environment. The district court rejected McElroy’s hostile work environment claim and granted summary judgment to AFI.

On appeal to the Tenth Circuit Court of Appeals (whose decisions apply to employers in Colorado, Wyoming, Utah, Kansas, and New Mexico), McElroy argued that if the conduct could make many people uncomfortable, a jury could find it sufficiently offensive to support his hostile work environment claim. The Tenth Circuit disagreed. It failed to see how behavior that was capable of causing “mere discomfort” would necessarily alter the conditions of employment so as to create a hostile work environment.

The court stated that to succeed on a hostile work environment claim, an employee must establish that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The court reiterated that “even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard” necessary for an actionable claim under Title VII. The court affirmed the grant of summary judgment in favor of AFI and against McElroy on his hostile work environment claim. McElroy v. Am. Family Ins., No. 14-4134 (10th Cir. Oct. 30, 2015).

Handling Questionable Complaints

What would you do if you received a complaint based on conduct such as what McElroy reported? Act on it? Ignore it? Here are some tips for handling complaints that may, or may not, rise to the level of severe or pervasive conduct.

Tip #1: Treat Each Complaint Seriously

It may be tempting to dismiss complaints of workplace harassment that may seem minor or inoffensive to you. Don’t do it. You never know if the complainant is telling you the full story or if other, more serious allegations are waiting to be told. In addition, failing to look into a report of workplace harassment will negate certain defenses if the complainant decides to file a lawsuit.

Tip #2: Conduct an Investigation

All reports of workplace harassment should be investigated. Hopefully, your investigation will show that no additional inappropriate behavior is occurring and that the reported conduct was an isolated, non-severe incident. You may, however, find that the conduct is more widespread. Perhaps other employees reporting to the same supervisor have experienced similar conduct, or the conduct has been escalating to involve more physical contact. You need to dig deeper to get the full picture of what the employee and his/her co-workers may be experiencing.

Tip #3: Take Action To Stop Inappropriate Behavior

Whether the behavior rises to the level of creating a hostile work environment or not, take action to stop it. Talk to the person acting inappropriately and explain that conduct such as touching and making comments about other employees’ looks leads to an uncomfortable work environment and must cease. Follow up with the complainant to make sure that he or she is not experiencing further inappropriate behavior or retaliation. Nip such conduct in the bud so that mere uncomfortable behavior does not escalate to unlawful harassment.  

Tip #4: Train Supervisors and Employees Annually

Conduct annual training on sexual harassment and other inappropriate workplace behavior in order to educate your workforce on your harassment policies and complaint-reporting mechanisms. Use training sessions to reinforce your commitment to keeping your company free of discrimination and retaliation. Make sure managers and supervisors are trained on recognizing and responding to complaints of workplace harassment.

Conclusion

Unlawful workplace harassment is tricky to define with any certainty. Conduct that one judge or appellate court finds as causing “mere discomfort” may be deemed sufficiently severe or pervasive so as to create a hostile work environment by another judge or court. Your best practice is to keep inappropriate behavior out of your workplace, follow the tips above and stay out of court in the first place.

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