Our attorneys have blogged about hostile work environments in the past (Best Law Read: What is a Hostile Work Environment.) Today, we’re going to look at what qualifies as a hostile work environment based on race/color under Title VII of the Civil Rights Act of 1964. (Best Law Read: What Qualifies A Hostile Work Environment Under Title VII?; What Is A Hostile Work Environment?).
What are the elements of a hostile work environment claim?
Top Race Discrimination Lawyer Answer: To win a racially hostile-work-environment claim, an employee must show that there is (1) unwelcome conduct; (2) that is based on the employee’s race; (3) which is sufficiently severe or pervasive to alter the employee’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer. This what the law calls the prima facie element of the race discrimination hostile work environment claim. (Best Law Read: What Does Prima Facie Mean?).
Objective analysis of whether a workplace is hostile and abusive looks to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
If the employee can present sufficient evidence to establish a prima facie case, the employer can state a legitimate non-discriminatory reason for the termination, which the employee then can show is a lie or pretext. (Best Law Read: You Don’t Need All Evidence To Start A Discrimination Case; Employment Discrimination Question: What Is Pretext?).
What is pervasive conduct?
Best Hostile Work Environment Lawyer Answer: A hostile-work-environment claim’s very nature involves repeated conduct – individual instances of discriminatory intimidation, ridicule, and insult that accumulate to create a hostile environment. Think of the racist incidents required for a pervasive hostile work environment as snow– one or two flakes of snow (like a Caucasian coworker mispronouncing your name) are not going to make you get out the shovel, but a steady flurry (the coworker smirking and mispronouncing your name even after repeated correction, then calling something “street,” then asking if you like a certain type of music, then…) will build up and block you in your driveway. When the snow is waist-high is when you know you have a hostile work environment protected under Title VII.
What is severe conduct?
Severe conduct is the 24-car-pileup-on-the-highway blizzard. Severe conduct is objectively and subjectively hostile and abusive and is usually reserved for such extreme examples of racial discrimination that no reasonable person would be expected to continue working where such conduct is permitted.
What is enough to show that harassment is severe and pervasive?
McIver v Bridgestone, a recent decision from the United States Court of Appeals for the Fourth Circuit, looks at a claim for hostile work environment that occurred over the course of twelve years.
Laverne McIver stated with Bridgestone Americas in 1996. McIver is Black and worked predominantly with White male coworkers. She had no problems with her coworkers until 2006, when she was shown a picture of a noose hanging from a machine in a different department that two Black coworkers were assigned to use. A White employee that she considered her friend, Chris Hawley, bragged to her and other coworkers that he had hung the noose. Another White employee, Jason Wheeler, took the blame, since Wheeler was related to a manager and felt confident that he would not be fired. In 2007, McIver requested a transfer to the department in which Hawley and Wheeler worked. When she transferred, she was the only Black employee in the department. After she started, she heard Hawley say that they were doing fine without Black people on their crew. Other Black employees also joined that department, and in 2008 McIver heard Hawley say that McIver was the reason that Black people were allowed to join their crew. Comments here and there, like Hawley made, looks like the beginning of a flurry.
Later that year, McIver alleged that one of her coworkers was tampering with the machine that she worked on. She then filed a charge with the EEOC, although the disposition of that charge is unclear. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge).
No further racist acts happened until 2012 or 2013, when racist caricatures of Trayvon Martin which included Confederate flags, the words “justice served” and called Martin “Trayvon Obama,” were drawn in two different men’s bathrooms at Bridgestone. This is the 24-car pileup.
McIver saw one of the drawings and was shown a picture of the other; Bridgestone removed the drawings after they were reported. Later, two “monkeys,” made out of tire tubing were hung from machines, with one hung from a noose with bulging eyes. Bridgestone investigated but, despite having many surveillance cameras, did not find the culprit. In 2013, McIver made her second complaint that someone was tampering with the machine that she worked on.
In 2016, McIver received a performance review that stated her behavior was “below expectations” because other teammates reported issues working with her. She filed an internal complaint that resulted in the performance review being amended to “meets expectations.” Her performance evaluation in 2017 again claimed that McIver alleging that coworkers sabotaged her machine was bad for morale. In 2018, McIver made several additional reports of tampering done on her machine. While Bridgestone acknowledged that McIver had substantially more set-up delays, they attributed the delays to her decision-making skills related to machine operating. In April 2018, McIver received a coaching that turned contentious, with McIver being suspended with pay as a result.
Bridgestone eventually decided that McIver would not have any issues with teamwork if she worked by herself, so they offered her a transfer to a different department or for her to resign with three-months’ severance pay. McIver chose the transfer and filed another Charge of Discrimination with the EEOC, followed by a lawsuit in the United States District Court for the Eastern District of North Carolina alleging a reassignment to a new department after reports of machine tampering constituted discrimination based on a hostile work environment and retaliation for filing a report of harassment.
The Court ruled against McIver and dismissed the claims against Bridgestone. Unfortunately, the Court of Appeals agreed. McIver and Bridgestone only disputed whether McIver had provided sufficient evidence that any tampering to her machine was based on race, and whether her allegations, taken together, were severe or pervasive enough to rise to the level of a hostile work environment.
Despite acknowledging the abhorrent and blatantly racist acts of the Trayvon Martin caricatures and hanged monkeys as horrific, the Court found that none of those incidents were directed at McIver personally, nor were they done by a supervisor, and that they took place years before her 2018 allegations of machine tampering. Pervasive conduct closely related in time is the key to showing a hostile work environment. The Court held that, “Large temporal gaps suggest occasional problems, not pervasive ones.”
What should the employee have done?
Best Race Discrimination Attorney Answer: The initial problem was that McIver did not seek the right legal guidance from attorneys that focus on employees’ rights soon enough. (Best Law Read: Why Having Skilled Employment Attorneys Is Critical). Importantly, at no point did McIver allege that any of the machine tampering done over the years was done because she was Black. “To establish that harassment was based on race, [the employee] must show that but for her race, she would not have been the victim of the alleged discrimination.” Title VII only protects employees if they are reporting harassment that is happening because of race. Unlike FMLA, magic words are required for a Title VII claim. Had McIver reported that her machines were sabotaged because she was Black, her case may have ended very differently. (Best Race Discrimination Attorney Answer: My Coworkers Are Racist! What Can I Do?).
How do I sue my employer for a hostile work environment?
Best Employment Lawyer Answer: If you have recently been harassed, terminated or demoted and believe that you were subjected to a hostile work environment, call the right attorney to schedule a free and confidential consultation. (Read: Are You Experiencing A Hostile Work Environment?; What is the Spitz No Fee Guarantee?). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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