Little ears pick up everything you say. Sometimes they repeat what they hear at school or to their friends. It could be about marital issues or what you think about your favorite sports team. However, when you preach racist beliefs at home, your kid will repeat that in public too. He might even call one of your employees “n*gg*r.” Our attorneys have discussed this before, when you preach hate and discrimination at home, don’t act all surprised when you kid becomes a racist. (Best Law Read: Where Does Discrimination Come From?).
What does hostile work environment mean?
Best Employment Lawyer Answer: It means a lot of things. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on a protected class i.e., race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), and national origin. Amongst these protections, includes protections from a hostile work environment, but only when that hostile work environment is created because of an individual’s protected classes. (Best Law Read: It’s Not A Hostile Work Environment If You Just Don’t Like Doing Your Job; Not All Hostile Work Environments Are Actionable).
The elements of a hostile work environment claim under Title VII are that the “[employee] must show that there is (1) unwelcome conduct; (2) that is based on the [employee’s protected class]; (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.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc). (Best Law Reads: How Do I Prove My Hostile Work Environment Claim?; What Qualifies As A Hostile Work Environment Under Title VII?; What Is A Hostile Work Environment?)
The first two elements of a hostile work environment are pretty simple. So, let’s focus on the third and fourth elements of a hostile work environment today. To do that, I am going to use the case, Chapman v. Oakland Living Center, Inc., et al., 48 F.4th 222 (4th Cir. 2022) as an example of hostile work environment laws.
Tonya R. Chapman is an African American individual who worked in the kitchen of the Oakland Living Center, Inc. At the time of her employment in 2018, Oakland Living Center was owned by Arlene and Michael Smith, both of whom are Caucasian. During the summer of 2018, Arlene and Michael’s son Steve Smith served as a supervisor at the Center, as he was training to take over the family business. Steve had three sons, that he often brought with him to work. The sons regularly were running around the Center, speaking to employees, and spent a lot of time in the kitchen with Tonya.
While at the Center, Steve’s youngest son (six years old), referred to Tonya as the n-word on three separate occasions. On one occasion, the son even said, “My daddy called you a lazy ass black n*****, because you didn’t come to work.” Id. at *2. After the first incident, Tonya discussed the comment with Patricia Warner, whom Tonya believed to be her supervisor. After the second incident, Tonya complained to Steve directly, who allegedly spanked his son in the parking lot and then tried to make his crying son apologize to Tonya. By the third incident, Tonya had had enough and left the Center to never return. Tonya then brought a lawsuit for hostile work environment based on her race.
What conduct is “sufficiently severe or pervasive” that it creates a hostile work environment?
Best Race Discrimination Law Firm Answer: It Depends. The phrase “sufficiently severe or pervasive” is one as an attorney I hear often. (Best Law Reads Are You Experiencing A Hostile Work Environment?). However, before becoming an attorney, it was not something that was in my regular vocabulary and is probably not in yours now. Even now, this phrase is extremely open ended. Although I would like to give you a specific definition of the term, the best I can give you is the legal definition. The element of sufficiently severe or pervasive is an objective one, which means the employee’s personal feelings of whether or not the conduct against them is severe is not the deciding factor. Instead, “[w]hether the environment is objectively hostile or abusive is judged from the perspective of a reasonable person in the [employee]’s position.” Boyer-Liberto, 786 F.3d at 277. If it is believed that a reasonable person would look at all the circumstances, and say, “yeah that would have made me want to quit,” then it is likely sufficiently severe or pervasive to alter an employee’s work condition.
In the past, the United States Court of Appeals for the Fourth Circuit has held that even using the n-word on a single occasion or a similar racial slur by a supervisor can create a hostile work environment. (Best Law Read: One Use Of N-Word By Manger May Or May Not Create Hostile Work Environment; Can I Sue If My Boss Racially Discriminated Once? I Need A Lawyer!).
In Tonya’s case, the Fourth Circuit Court of Appeals determined that “a reasonable person in Chapman’s position could ‘fear that the child had his relatives’ ear and could make life difficult for her.” Chapman at *6. Moreover, “the child directly attributed the slur to his father, along with a negative commentary on Chapman’s work performance.” Id.
In other words, a reasonable person could perceive a six-year-old as simply repeating the discriminatory words of his father. Because, I don’t know about you, but I don’t know anyone that is just born racist. Generally, biases are developed through interactions with and grooming by others.
Can the conduct by a third-party be imputed to an employer?
Best Hostile Work Environment Lawyer Answer: Most of the time, in employment discrimination hostile work environment claims, the harasser is a supervisor or manager employed by the employer. Sometime, the discrimination and harassment come from coworkers. (Best Law Read: Can I Sue My Job For Sexual Harassment By Coworkers? ). We’ve also addressed that employers can be liable for harassment and discrimination by customers, guests, and patrons of a business. (Best Law Read: Are Employers Liable For Harassment By Customers?; Does My Job Have To Stop Harassment By Customers?; What Can I Do About Racist Customers?). Therefore, it is pretty clear that the employer can be held liable for the acts of the people that it has control over.
On this point, the United States Court of Appeals for the Fourth Circuit held:
As we have emphasized, “an employer cannot avoid Title VII liability for [third-party] harassment by adopting a ‘see no evil, hear no evil’ strategy.” See Freeman, 750 F.3d at 423 (alteration in original) (quoting Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 334 (4th Cir. 2003) (en banc)). Thus, “[k]nowledge of harassment can be imputed to an employer if a reasonable person, intent on complying with Title VII, would have known about the harassment.” See Ocheltree, 335 F.3d at 334 (alteration and internal quotation marks omitted). “Under this rule an employer may be charged with constructive knowledge of [third-party] harassment when it fails to provide reasonable procedures for victims to register complaints.” Id.
Id. at 232.
But how does that work when the harasser is a racist six-year-old boy? Pretty much the same as for other non-managerial harassers. The actual standard for imputing liability to an employer is “if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end the harassment.” Freeman v. Dal-Tile Corp., 750 F.3d 4123, 423(4th Cir. 2014). Therefore, in Tonya’s case, even though the harasser was six years old, because Steve, a supervisor at the Center, knew about the conduct, he was on the hook to do something about it. When the employer failed to correct the conduct, the United States Court of Appeals for the Fourth Circuit held that it such conduct could be viewed as a hostile work environment:
Notably, it matters not if the boy was too young to understand the force of his words or if he lacked intent to harm Chapman, for “harassment based on a protected characteristic may be actionable where it ‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.’ ” See EEOC Amicus Br. 13-14 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Indeed, a reasonable person in Chapman’s position could perceive the boy’s comments to be “especially humiliating” because of his young age, and his “constant presence in the [assisted living facility’s] kitchen” to pose a threat “that another incident could occur at any time.” Id. at 18-19 (internal quotation marks omitted).
Id. at 231-32.
A third-party does not have to be the relative of a supervisor or owner of the employer to still warrant interference by the employer. More likely in an employment situation, it could be a client or a customer harassing an employee of a company. People often don’t realize that their employer can be held liable for people that aren’t on the employer’s payroll. However, since an employer generally has the right to ban customers or refuse service, they have the power to protect their employees from discriminatory behavior from third parties, and the law requires them to use that power.
What causes the liability in hostile work environment cases is the knowledge by the employer and the failure to correct it. People often do not complain about harassment/hostile work environment, because they fear retaliation by their employer. However, how can an employer be held liable to fix something if they don’t know about it? And, if they refuse to fix it or retaliate against you for reporting discrimination or harassment, you have a claim. The reality is you have to report the conduct to be legally protected. It is not the harassment itself that the employer is liable for in most cases, but instead, it is the employer’s failure to resolve the conduct that makes them liable to the victim.
How Do I Sue for A Hostile Work Environment?
Best Employment Lawyer Answer: If you feel you have been subjected to a hostile work environment call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). 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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