This case involves a plaintiff who worked as a part-time bartender who worked for a bar in New Jersey. She claimed that her supervisor created a hostile work environment by calling the plaintiff names “used to describe a person with an oversized posterior.” (The court deemed it unnecessary to identify the supervisor’s “alternate names” for the plaintiff.)
Supposedly, the plaintiff’s supervisor used these “alternate names” rather than her given name when he set the weekly work schedule. According to the plaintiff, he even wrote these names on some of the plaintiff’s pay envelopes.
He was all about that bass. But, apparently, that type of behavior was commonplace at this bar. The court noted that the supervisor, other male employees, and other female employees “routinely called each other by names describing a person with a large posterior rather than using the employee’s actual name.”
And the plaintiff was no wilting violet either. While she complained many times specifically about her supervisor’s behavior, she testified that his name-calling never interfered with her work or changed the conditions of her employment.
Meanwhile, the plaintiff had a potty mouth too. According to the plaintiff’s coworkers, she routinely cursed at work, told sexual jokes, danced inappropriately, and posed in provocative pictures with coworkers. The supervisor, too, was often the target of the plaintiff’s inappropriate name-calling. The court noted that some of the plaintiff’s language and name-calling were worse than what her supervisor said.
So let’s pause here for a second and go over what a plaintiff must demonstrate to establish a sex-based hostile work environment (i.e., sexual harassment).
To prove a hostile work environment claim, a plaintiff must demonstrate that the complained-of conduct (1) would not have occurred but for the employee’s gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman believe that (4) the conditions of employment are altered, and the working environment is hostile or abusive.
I see some issues with the plaintiff’s claims here. How about you?
Let’s talk about that first element, which requires the plaintiff to demonstrate that the “alternate names” were because of her sex. The plaintiff did not dispute that the supervisor used the alternate names when addressing both men and women. Other employees — men and women — referred to each other by the alternate names rather than their proper names.
Was the supervisor’s conduct severe or pervasive? Not really. It was teasing and name-calling. Or, as the court put it, “Merely offensive comments, such as referring to an employee by a word describing a large backside rather than the employee’s proper name as in this case, is insufficient to sustain a hostile work environment claim.”
Indeed, the names weren’t enough to interfere with the plaintiff’s working conditions. Heck, the plaintiff could dish it out better than she could take it.
Would an HR professional age ten years for every week of work at this bar? Perhaps. Is this a wake-up call for some training? I’d say.
But did the plaintiff establish a hostile work environment? No, she did not.