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Can Isolated Remarks Prove that a Workplace is Hostile?

November 4, 2022・7 mins read
Can Isolated Remarks Prove that a Workplace is Hostile?

A hostile work environment occurs when a boss or co-worker makes a worker's job performance impossible because of a legally protected characteristic such as age, race, or sex. However, simple teasing or someone being difficult to deal with is generally not enough to find harassment or discrimination. A recent lawsuit illustrates that "isolated remarks" aren't enough to support a hostile work environment claim.

Lawsuit filed

A Michigan brewery and pub was recently successful in defending itself against a former employee's allegation of a hostile work environment. The appeals said the man's claims of a hostile work environment based on remarks including that he should "act more masculine" were not enough to support his lawsuit. Similarly, the 6th Circuit court said the discrimination claim failed because the employee couldn't show he suffered an adverse action because he is gay or because of sex stereotypes. Instead, after he was told to act more masculinely, he quickly rose to a managerial position. According to the court, his retaliation claim also failed because there was no evidence he was disciplined and then fired because he complained about his supervisor's statements.

"Act more masculine"

The employee began working as a server for a Michigan brewery and pub in 2018. His supervisor allegedly said that before she could recommend him for a leadership role, he would have "act a little more masculine." She also suggested that he change his hairstyle, remove visible body piercings, and remove his Facebook status, which indicated that he was dating a man, according to the court's opinion. The court said the plaintiff made some of the changes, including modifying his hairstyle and deleting his relationship status on Facebook. The tribunal also noted that the record in the case did not show any evidence that the plaintiff changed how he acted to appear "more masculine" or otherwise hide his sexual orientation. The plaintiff was promoted three times within eight months. As operations manager, he was reprimanded several times and eventually fired after missing a mandatory meeting and missing a work shift. He sued the brewery, alleging a hostile work environment, discrimination, and retaliation. A federal trial court ruled for the employer. The U.S. Circuit Court of Appeals for the 6th Circuit (6th Cir.) agreed with the trial court.

Hostile work environment

The hostile work environment claim was not successful. The appeals court said that to prevail on the claim, the plaintiff had to show that the workplace was so filled with "discriminatory intimidation, ridicule, and insult" that the terms and conditions of his employment were changed, and an abusive working environment was created.

When "isolated comments" are used as evidence of illegal harassment, employers can prevail in hostile work environment claim lawsuits.

However, the court said the plaintiff had only alleged isolated incidents that weren't enough to support a hostile work environment claim. Employers can prevail in lawsuits brought on claims of a hostile work environment when "isolated comments" are used as evidence of illegal harassment.

More case examples

Other courts have also found that negative remarks weren't enough to sustain a claim for a hostile work environment. In another lawsuit, the U.S. Court of Appeals for the 5th Circuit court ruled in 2021 that "boorish and offensive comments" about age and sex made to a UPS employee were isolated and not "sufficiently severe" to prove her claim of discrimination. In a 2019 lawsuit, the Court of Appeals for the Fourth Circuit ruled that an employee's legal claims that included a hostile work environment and disparate treatment could not be supported because he had alleged only a few incidents over the course of several years. The plaintiff, an African American male, sued the South Carolina paper mill where he had worked for 30 years, alleging race-based discrimination. The federal trial court ruled for the employer. The appeals court upheld the trial court. The 4th Cir. said the "handful of incidents" the plaintiff described did not rise to the level of severity and pervasiveness required to constitute a hostile workplace. In another instance, the U.S. Court of Appeals for the 6th Cir. found that disparaging comments limited to a few incidents and made by a few individuals did not alter the plaintiff's working conditions. Among other things, the plaintiff said one co-worker told her that "nobody likes you" and that "people don't trust you."

Agency guidance

Bias claims often feature allegations that a worker's manager, supervisor, or co-workers made discriminatory comments. The severity and frequency of the comments generally influence how a court views them. It also determines whether they provide enough evidence to support a discrimination or a hostile work environment claim. The U.S. Equal Employment Opportunity Commission (EEOC) has described the conduct that can create a hostile work environment as follows: "Petty slights, annoyances, and isolated incidents (unless extremely serious)" do not create illegal behavior, it said. Offensive conduct can include name-calling, slurs and epithets, offensive jokes, and physical assaults, among other things, according to the guidance.

What is an extremely serious incident?

While isolated incidents generally will not support a bias or harassment claim, an extremely serious incident may be enough. One court noted that a single incident of the utterance of a racial epithet by a supervisor when subordinates were present was enough to alter the conditions of employment and create an abusive working environment. In that lawsuit, the U.S. Court of Appeals for the 5th Circuit ruled that a worker's claim that his supervisor once publicly referred to him using a racial slur was enough to support his claim that he was subjected to racial bias. In so deciding, the appeals court reversed a decision by the trial court that had dismissed the man's legal claim. The appeals court concluded that the alleged one-time public use of the racial slur resulted in a viable legal claim for a hostile work environment.

While isolated incidents generally will not support a bias or harassment claim, an extremely serious incident may be enough.

The U.S. Court of Appeals for the 4th Circuit has also ruled that an "extremely serious" but one-time incident of verbal harassment can create a hostile work environment claim under federal law. In a 2015 lawsuit, a worker who was a cocktail waitress at a hotel said her manager pulled her aside and started yelling at her. At one point, he referred to her using a racial slur. The man used the racial slur again the next day. The court observed that a single incident of harassment that is "extremely serious" can create a hostile work environment. The court noted that, because of the supervisor's authority, a racial epithet used by a supervisor would affect the work environment much more severely than if said by a co-worker.

Prevention

Keeping bias out of the workplace can prevent matters from landing in court. The EEOC has offered tips for preventing discrimination:

  • Train HR managers and employees on equal employment opportunity laws.
  • Those at the top levels of the organization must embrace the robust equal employment opportunity policy you adopt. Train managers, supervisors, and employees on the policy. Hold leaders who violate the policy accountable.
  • Promote an inclusive workplace culture. Create an environment where personal differences are respected.
  • Employment decisions should be based on "neutral and objective criteria." Decisions should be free of personal stereotypes or hidden biases.
  • Consider a diverse group of candidates for job openings. The group of candidates considered for upper-level management positions should also be diverse.
  • Establish a robust, in-house complaint process.

Conclusion

Legal experts have noted that, in most instances, isolated comments won't support a claim of harassment or discrimination. However, legal liability is more likely to be found if the isolated comments are based on race or gender.

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

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