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The Employer Handbook Blog
It’s another “when a hostile work environment isn’t a hostile work environment” post
Second verse, same as the first.
(But read it anyway to pad my blog stats, would ya?)
All of us have heard the words “hostile work environment” bandied about to the point where the most minor slight in the office can supposedly create a hostile work environment. Well, as a matter of law, a hostile work environment must arise from behavior that is based on a protected class (such as gender). It also has to be objectively severe or pervasive.
What is objectively severe or pervasive behavior?
Let’s look at this recent opinion in Beamon v. Tyson Foods, Inc.:
To make this determination, the Court considers the following factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance. The Court must look at the totality of the circumstances, and view the harassing conduct in context, not as isolated acts.
In this particular case, over 11 months, there were a half-dozen incidents (four times a supervisor showed the plaintiff pornographic videos on his cell phone; and twice he made “arguably sexually-related comments”). While many folks — including the plaintiff — would argue that this type of behavior creates a hostile work environment, as a matter of law, the Beamon Court disagreed:
Although the alleged conduct of Beamon’s supervisor was boorish and inappropriate for the workplace, it was not sufficiently severe or pervasive to alter the terms and conditions of Beamon’s employment.
The Beamon Court further relied upon a Fourth Circuit case, Greene v. A. Duie Pyle, Inc., 371 F. Supp. 2d 759, 763 (D. Md. 2005), aff’d, 170 F. App’x 853 (4th Cir. 2006), which recognized that it takes a “constant and pervasive display” of pornography in the workplace to have a hostile work environment.
(Raise your hand if you wrote the Fourth Circuit brief in A. Duie Pyle. I’ll be typing the rest of this post one-handed. Actually, one-pinkied. I’ll be damned if I’m putting down this whiskey sour. I’m kidding; it’s absinthe).
If you have to raise a “severe or pervasive” defense, you lose anyway.
That’s right. While you will prevail in a hostile work environment lawsuit if the behavior is neither severe nor pervasive, just getting to court is a loss. It’s a big waste of time. And lawyers aren’t free. (Thank god!)
But, why not avoid all of that by making sure that you have a good anti-harassment policy, you train folks on the types of behaviors that are (and aren’t) permitted on the workplace, and you provide an effective complaint procedure for the times when your training slips through the cracks. That way, isolated incidences of harassment may be addressed quickly and effectively to avoid repeat performances.