Not everything mean or harassing thing that your manager or supervisor does means that you can sue your employer. As much as your employee’s rights attorneys wished that we could sue every asshat boss or owner of a company where you work, that is not how the law is set up.
In today’s blog, our employment discrimination lawyers look at the recent case, Pfau v. Janet Yellen, In Her Official Capacity As Secretary Of The Treasury, 2022 WL 17175594, at *1 (5th Cir. Nov. 23, 2022) out of the United States Court of Appeals for the Fifth Circuit. In this case, Marie Pfau, a former IRS employee, sued for alleged harassment by her boss.
Before we dive into the fact her claims against the IRS, there are a few important factors to keep in mind.
What can I do to stop my boss from being mean to me?
You can and should report offensive conduct to Human Resources (HR) or a higher manager if your supervisor is engaging in bad or mean conduct. However, it is important to remember that the law does not protect employees from each instance of bad conduct by your boss or supervisor. In order to be actionable, your employer’s bad conduct has to violate a specific employment law, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), or the Age Discrimination in Employment Act of 1967 (“ADEA”). These employee’s rights laws make it unlawful for employers to discriminate or harass their employees based on the race/color, national origin, disability, religion, gender/sex, pregnancy, LGBTQ+ status, and age.
Thus, if you boss makes fun of you style of dress, that you are left-handed, or because he thinks you are stupid, his conduct is clearly bad, but it is not likely unlawful unless you can sufficiently show that he only engages in such offensive conduct against one protected class of individuals. (Best Law Read: Not All Hostile Work Environments Are Actionable; What Evidence Do I Need To Prove Hostile Work Environment And Constructive Discharge?; How Do I Prove My Hostile Work Environment Claim?).
What does disparate treatment mean?
Disparate treatment is a legal term in employment law that refers to situations where an employer treats certain employees less favorably or harasses only certain employees based on a protected class, such as race, gender, national origin, sexual orientation, gender identity, disability or age. (Best Law Read: What Is Disparate Treatment?; Racial Discrimination: Any Disparate Treatment May Give Rise To A Very Good Claim). In order to prove a disparate treatment employment discrimination claim, an employee must present evidence that a similarly situated employee outside that employee’s protected class was treated more favorably. (Best Law Read: Who Is A Similarly Situated Employee For Disparate Treatment Discrimination Claims?).
Thus, a boss that yells, screams, and insults a variety of employees indiscriminately will not be in violation of employment laws. However, an employer that only tells Black employees that they are stupid or idiots; or only screams in the face of women but not men, their will likely be a claim for disparate treatment employment discrimination.
Do I have a sexual harassment claim if my boss made an offensive joke or comment?
In order to have a claim, an employee must demonstrate that the offensive conduct was severe or pervasive. To be severe or pervasive, the employee must show that taking all employment factors into consideration, that the conduct at issue was subjectively and objectively offensive enough to alter the conditions of employment. This means that both the employee and a reasonable person would find the conduct by the employer to be offensive.
In Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283–84, 141 L. Ed. 2d 662 (1998), the United States Supreme Court held:
These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” Properly applied, they will filter out complaints attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” … We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment. (Citations omitted).
So, what happened in the Pfau case against the IRS?
At the sexual harassment trial, Pfau testified that her co-employee, Mario Drumgoole, frequently spoke excessively loud, which Pfau believed to be disruptive and disturbing. More particularly, Pfau testified about six specific incidents that management knew of but did nothing to correct:
(1) Drumgoole “announced” to the office he was going to let everybody go home because the department’s computer system was malfunctioning; (2) Drumgoole “interjected himself” into Pfau’s conversation with her co-worker, Margaret Rhoads; (3) Pfau overheard Drumgoole tell Rhoads that Rhoads “was going to get a complaint filed against her for not working;” (4) Pfau overheard Drumgoole and Rhoads reference “old people having sex;” (5) Drumgoole “yelled” at Pfau to “get back to work right now;” and (6) Pfau saw Drumgoole walking around the office “smack[ing] his fist into one hand and grunt[ing].”
Id. at *1.
The obvious problem here is that only one of these alleged incidents even remotely implicate gender, which was the asserted singular offhand comment generally about “old people having sex.” Because most of the conduct did not involve any protected class and none of the conduct was server or pervasive enough to create a legally hostile work environment, these claims could not survive. In a last effort, Pfau argue that she was only subjected to this conduct because she was a woman.
The United States Court of Appeals for the Fifth Circuit rejected her arguments and dismissed the case at the close of her evidence:
After reviewing the evidence presented at trial in the light most favorable to plaintiff, we conclude that Pfau has not presented sufficient evidence to support the essential elements of her claim. Although Pfau testified that she believes the six incidents she identified at trial constitute harassment in violation of Title VII because “men were not insulted as [she] was,” Pfau failed to introduce any evidence that would suggest these incidents were motivated by her sex. To the contrary, as pointed out by the Government, Drumgoole’s conduct was generally made in front of both male and female coworkers. Moreover, the identified incidents were “offhand comments” that were neither sufficiently severe nor pervasive to alter the conditions of Pfau’s employment and create a hostile working environment. Finally, plaintiff cannot establish that her employer failed to take prompt remedial action because it is undisputed in the record that Pfau refused her employer’s offer to relocate her workstation away from Drumgoole. Accordingly, because Pfau failed to present competent evidence at trial to meet the elements of her hostile work environment claim, the district court committed no error in granting a judgment as a matter of law.
Id. at *3 (footnotes omitted).
How do I know if I have a claim against my employer?
Best Employment Lawyer Answer: Because every employee faces different facts and circumstances at work and on their jobs, the best way to determine if you have a viable employment discrimination or harassment claim against your employer is to consult a qualified employment law lawyer at a firm that focuses its efforts on employees’ rights.
To that end, you can call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Spitz Lawyers Win $1.33 Million Verdict; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). 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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