What is a hostile work environment? Are my complaints protected?

Issue # 1: – What constitutes an unlawful hostile work environment under Title VII?

Title VII is violated only when the discriminatory conduct is so severe or pervasive that it alters the conditions of employment and creates an abusive working environment.  Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.  Courts look “‘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.

 Issue # 2: – Is my complaint or opposition protected?

Only when the employee “objectively” believes that the conduct complained of meets the standard described above is the complaint or opposition protected.

The Fourth Circuit Court of Appeals provided a summary of the law in this area in Jordan v. Alternative Res. Corp., 458 F.3d 332, 339 (4th Cir. Md. 2006):

The “unlawful employment practices” that an employee can oppose, and thereby be protected from retaliation, include practices that “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Such discrimination includes maintaining a racially hostile work environment, i.e., a “workplace … 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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) (internal quotation marks omitted)). Courts determine “whether an environment is sufficiently hostile or abusive 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.'” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (quoting Harris, 510 U.S. at 23); see also Breeden, 532 U.S. at 270 (“[W]orkplace conduct is not measured in isolation”). “A recurring point in these opinions is that simple teasing,  off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Faragher, 524 U.S. at 788 (citations and internal quotation marks omitted).

Unlike other, more direct and discrete unlawful employment practices, hostile work environments generally result only after an accumulation of discrete instances of harassment. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) (“Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct…. Such claims are based on the cumulative effect of individual acts”); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001).

The relevant provision of Title VII reads:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this subchapter.

42 U.S.C. § 2000e-3(a).

The Fourth Circuit stated in Jordan v. Alternative Res. Corp., 458 F.3d 332, 338-339 (4th Cir. Md. 2006) the following:

The plain meaning of the statutory language provides protection of an employee’s opposition activity when the employee responds to an actual unlawful employment practice. Reading the language generously to give effect to its purpose, however, we have also held that opposition activity is protected when it responds to an employment practice that the employee reasonably believes is unlawful.   EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406-07 (4th Cir. 2005) (citing United States ex rel. Wilson v. Graham County Soil & Water Conservation Dist., 367 F.3d 245, 255 (4th Cir. 2004), vacated on other grounds 545 U.S. 409, 125 S. Ct. 2444, 162 L. Ed. 2d 390 (2005); and Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)); see also Peters v. Jenney, 327 F.3d 307, 320-21 (4th Cir. 2003).

The court explained as follows:

[T]here is a difference between an isolated racial slur, which is always and everywhere inappropriate, and the sort of severe or pervasive conduct that creates a hostile work environment. “Title VII does not prohibit all verbal or physical harassment in the workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998); see also id. (reasoning that Title VII will not become “a general civility code for the American workplace” so long as courts pay “careful attention to the requirements of the statute”). Although the distinction between a racial slur and a hostile workplace may at a highly abstract level seem a difficult one for employees to manage, the distinction should not be conceived of in the abstract but rather in light of the Navy Federal objective reasonableness standard, which serves to protect an employee’s judgment in a close case. Objectively reasonable employees can and do recognize that not every offensive comment will by itself transform a workplace into an abusive one. Therefore it sometimes will not be reasonable for an employee to believe that the isolated harassing event he has witnessed is a component of a hostile workplace that is permeated with discriminatory intimidation, ridicule, and insult.

Jordan v. Alternative Res. Corp., 458 F.3d 332, 342 (4th Cir. Md. 2006)

In 2012 the Fourth Circuit repeated its opinion that not all opposition is protected, finding that an employee must “objectively” believe that the conduct about which he complains is a violation of Title VII and not merely an isolated harassing ridicule or insult.  The court stated at Session v. Montgomery County Sch. Bd., 462 Fed. Appx. 323, 325-326 (4th Cir. Va. 2012):

Protected activity can be either “opposition” activity or “participation” activity. Id. at 406. Opposition activity includes internal complaints about alleged discriminatory activities—the activity at issue in this case. Id. Such opposition activity is protected when the employee opposes an “actual unlawful employment practice” or “an employment practice that the employee reasonably believes is unlawful.” Jordan v. Alternative Res. Corp., 458 F.3d 332, 338 (4th Cir. 2006). “Because the analysis for determining whether an employee reasonably believes a practice is unlawful is an objective one, the issue may be resolved as a matter of law.” Id. at 339. See also Breeden, 532 U.S. at 271 (reinstating district court’s entry of summary judgment where plaintiff could not have reasonably believed that she was opposing an employment practice that violated Title VII).

Title VII “forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). To evaluate whether that standard has been met, courts look “‘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.'” Breeden, 532 U.S. at 270-71  (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)). Relatedly, a “‘recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.””  Breeden, 532 U.S. at 271 (quoting Faragher, 524 U.S. at 788).

 

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.