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The Employer Handbook Blog
Even one bad comment may create a hostile work environment, says Second Circuit
With all due respect to the United States Court of Appeals for the Second Circuit, I’m glad, at least for this month, that I don’t practice there.
You see, as I blogged here on Monday, the Second Circuit ok’d/protected an employee’s vicious, profanity-laced, social-media tirade against his boss, his boss’s mother, and his boss’s entire family. It was really awful.
But, then, you have this opinion, which the Second Circuit issued yesterday. In Daniel v. T&M Protection Resources, LLC, the appellate court considered the U.S. Equal Employment Opportunity Commission’s position that a single comment from a supervisor to a subordinate can create a hostile work environment. And, although, the court didn’t accept the EEOC’s position outright; it didn’t reject it either.
Here’s the money shot:
[Second Circuit precedent] did not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment….Therefore, although we decline to confront the issue of whether the one-time use of the [racist] slur … by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment, we conclude that the district court improperly relied on our precedents when it rejected this possibility as a matter of law.
Other courts have gone the next step and expressly held that a single comment can create a hostile work environment. For example, the Fourth Circuit did that in Boyer-Liberto v. Fontainbleau Corp. and New Jersey did that a long time ago in Taylor v. Metzger (under the NJ Law Against Discrimination).
Unfortunately, no amount of training is going to prevent some moron manager from doing stupid stuff like this. However, the Second Circuit in Daniel did note that a hostile work environment “typically depends upon the quantity, frequency, and severity” of the bad behavior.
Therefore, even though you may not have a zero tolerance policy, when you learn of a single instance of particularly bad behavior, that’s probably not the time for second chances.