Hostile Work Environment: Making a Prima Facie Case

Employment discrimination can take the form of workplace harassment.  To be actionable in federal court, the level of harassment has to be severe or pervasive enough to constitute a hostile work environment.  For instance, a workplace that is saturated with sexual jokes, slurs, or innuendo could constitute a sexually hostile work environment.  A workplace that is saturated with racial jokes, slurs, or innuendo could constitute a racially hostile work environment.

A hostile work environment can be actionable if an employer is aware of the harassment but fails to take prompt and effective corrective action.  The employee generally has a duty to complain to the employer about the harassment.

In order to establish a prima facie hostile work environment claim, a plaintiff must demonstrate that the alleged conduct:

1) was unwelcome;

2) resulted because of [race, sex, national origin, religion, etc.];

3) was “sufficiently severe or pervasive” to alter the conditions of [his or her] employment; and,

4) was imputable to [his or her] employer.

Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 338 (4th Cir. 2003).

First, a plaintiff can demonstrate that the harassment is unwelcome by complaining about it.

Second, if a female employee is the victim of sexual jokes, slurs, or innuendo from a male co-worker or supervisor, the harassment is assumed to be because of her sex.  The same can be said about harassment that targets an employee’s race, national origin, or religion.

Third, the offensive conduct must be sufficiently severe or pervasive.  Generally, the offensive conduct must be more than incidental.  For example, a few instances of racial or sexual name-calling may not be actionable.  However, a workplace where racial or sexual name-calling is a daily occurrence could be actionable. Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001); Harris v. Forklift Sys., 510 U.S. 17, 22 (1993) (”A discriminatorily abusive work environment…can and often will detract from employees’ job performance…”)

Fourth, an employer can generally be found liable for a hostile work environment when the employer: 1) has knowledge of the harassment, and, 2) fails to take prompt and effective corrective action. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S.775 (1998).

If you are a victim of a hostile work environment, seek the advice of an experienced attorney as soon as possible.

Bryan A. Chapman, Esquire

www.baclaw.com

 

 

Retaliation: Surviving the Employer’s Accusation of Poor Performance or Misconduct.

In a workplace, retaliation occurs when an employee complains about or opposes discrimination and is then subject to harsh treatment, such as, harassment or termination.  The harsh treatment must be a direct result of the employee’s complaint about or opposition to discrimination.  In other words, “but for” his or her complaint or opposition, the employee would not have been subject to harsh treatment.

The Supreme Court expanded the scope of retaliation in Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53 (2006).  To establish a prima facie claim for retaliation, a plaintiff must show:

1)       they engaged in protected activity;

2)       the defendant took action that would be “materially adverse to a reasonable employee or job applicant”; and,

3)       there is a causal connection between the protected activity and the asserted adverse action.

Materially adverse means harmful enough to “dissuade a reasonable worker from making or supporting a charge of discrimination.”  Burlington, 548 U.S. 68.

To protect itself against a retaliation claim, an employer may accuse an employee, who has a long history of satisfactory job performance, of being a bad employee.  By accusing the employee of poor job performance or misconduct, the employer creates a non-retaliatory excuse for its retaliatory conduct.  If the employer can advance a non-retaliatory explanation for its action, the employee’s retaliation claim may not meet the “but for” standard and be subject to dismissal by an administrative agency or court.  To counter this, an employee must demonstrate that the employer’s excuse is not believable or mere pretext for retaliatory conduct.

An opportunistic employer may simply wait for an opportunity to accuse the employee of poor performance or misconduct.  However, this ploy may not always succeed. Hamilton v. General Electric, 556 F.3d 428 (6th Cir. 2009) (We have held that when an “employer . . . waits for a legal, legitimate reason to fortuitously materialize, and then uses it to cover up his true, longstanding motivations for firing the employee,” the employer’s actions constitute “the very definition of pretext.”)  An employee who complains about or opposes discrimination should not let their guard down.

Management may conspire against the employee or solicit complaints from the employee’s co-workers.  Under these circumstances, new accusations of poor performance or misconduct may seem contrived. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 496 (D.C. Cir. 2008) (“[t]he question is not whether the underlying…incident occurred; rather, the issue is whether the employer honestly and reasonably believed that the underlying…incident occurred”)  An employee should document his or her experience in the workplace and identify potential witnesses.

If you believe your employer is retaliating against you, seek the advice of an experienced attorney as soon as possible.

Bryan A. Chapman, Esquire

www.baclaw.com

Published in: on January 26, 2014 at 4:52 pm  Leave a Comment  
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