There are certain things that are universally hated: bad drivers that flip you off because nothing is their fault, a sink full of dishes, clothing that is supposed to be in your size but is cut so small just to make you feel fat, cancer, being told to calm down when you are upset, and, of course, the IRS. (Let me know what you hate).
That’s why I was so excited to see the recent case of Chen v. Yellen, No. 21-3110, 2023 WL 2967428, at *1 (7th Cir. Apr. 17, 2023), pop up on my daily reading of employment cases. You see, Fiona Chen, a former employee of the Internal Revenue Service, sued Janet Yellen in her official capacity as the Secretary of the Treasury under Title VII of the Civil Rights Act of 1964, alleging that her supervisors at the IRS subjected her to a hostile work environment on the basis of her race/color and national origin. Chen was essentially suing the IRS!
What is a legally hostile work environment?
A hostile work environment claim under Title VII arises when an employee is subjected to unwelcome conduct based on their protected characteristic, such as their race, sex, religion, or national origin, that is so severe or pervasive that it creates a work environment that a reasonable person would find to be hostile or abusive. To establish a hostile work environment claim, an employee must show that:
- He/she/they were subjected to unwelcome conduct based on their protected characteristic,
- The conduct was severe or pervasive enough to alter the terms or conditions of his/her/their employment,
- The conduct was both objectively and subjectively offensive to the employee, and
- There is a basis for holding the employer liable for the conduct.
The United States Supreme Court first set forth the standard in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), in which it held that “for sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” The standard was later clarified in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in which the Supreme Court held that the standard is an objective one, meaning that the conduct must be such that a reasonable person would find it to be hostile or abusive. The Court also emphasized that the standard is a totality of the circumstances test, meaning that the conduct must be considered in its entirety, including its frequency, severity, and whether it is physically threatening or humiliating.
To satisfy the first element, an employee must show that they were subjected to conduct that was based on their protected characteristic. In Harris, the Supreme Court explained that this can include “offensive conduct that is gender-specific or that targets only women,” and that “the pervasiveness of the harassment is determined by looking at all the circumstances.” For example, in EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015), the United States Court of Appeals for the Sixth Circuit held that a Black employee who was subjected to racial slurs, graffiti, and nooses in the workplace had satisfied the first element of a hostile work environment claim because the conduct was based on his race and was objectively offensive.
The second element requires the conduct to be severe or pervasive enough to create a hostile work environment. In Meritor, the United States Supreme Court held that “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” The Supreme Court further explained that the severity or pervasiveness of the conduct must be evaluated from the perspective of a reasonable person in the employee’s position. For example, in Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998), the United States Court of Appeals for the Seventh Circuit held that a female police officer who was subjected to sexually suggestive comments, gestures, and propositions had satisfied the second element of a hostile work environment claim because the conduct was severe and pervasive enough to create a hostile work environment.
The third element requires the conduct to be both objectively and subjectively offensive to the employee. In Harris, the Supreme Court explained that the standard is an objective one, but that the employee’s subjective perception of the conduct is relevant to the inquiry. The Supreme Court explained that the conduct must be “severe or pervasive enough to create an objectively hostile or abusive work environment,” but also that “the victim’s subjective perception is relevant in determining whether the environment was objectively hostile or abusive.”
As for the fourth element, in Vance v. Ball State University, 570 U.S. 421 (2013), the Supreme Court addressed the issue of supervisor liability in hostile work environment cases. The Court held that an employer is vicariously liable for a hostile work environment created by a supervisor if the supervisor’s conduct results in a tangible employment action, such as discharge, demotion, or undesirable reassignment, or if the supervisor’s conduct constitutes “harassment of the kind that culminates in a tangible employment action.” However, if the supervisor’s conduct does not result in a tangible employment action, the employer may raise an affirmative defense by showing that it exercised reasonable care to prevent and promptly correct any harassing behavior and that the employee unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer.
Alternatively, an employer can be held liable for a hostile working environment created by non-management employees if the employer knew or should have known about the harassment and failed to take appropriate corrective action to address it. Under Title VII. If an employee complains about harassment or discrimination to their supervisor or HR department, the employer has a duty to investigate the complaint and take appropriate action to stop the harassment. If the employer fails to take reasonable steps to stop the harassment, such as by disciplining the offending employee or providing training to prevent future incidents, the employer can be held liable for allowing a hostile work environment to exist.
In addition to Title VII, other federal and state laws also prohibit hostile work environments. For example, the Americans with Disabilities Act (“ADA”) prohibits discrimination based on disability, and the Age Discrimination in Employment Act of 1967 (“ADEA”) prohibits discrimination based on age. The standards for establishing a hostile work environment claim under these laws are similar to the standard under Title VII.
Best Hostile Work Environment Attorney Blogs on Point:
- What Qualifies A Hostile Work Environment Under Title VII?
- What Evidence Do I Need To Prove Hostile Work Environment And Constructive Discharge?
- One Use Of N-Word By Manger May Or May Not Create Hostile Work Environment
- Not All Hostile Work Environments Are Actionable
- What Is A Legally Hostile Work Environment?
Did Chen take down the IRS?
No. In Chen, she complained that a hostile environment was created when:
- The narrative comments on a review, where she was given a 4.8 on a 5-point scale, where unfair.
- Her boss directed “aggressive comments and body language” towards her.
- She was not given a new computer when she requested it.
- The next review, also a 4.8, included reference to complaints from taxpayers, including that Chen’s spelling and grammar errors in a report were so substantial that her boss needed to re-write the report.
- She subjectively believed that she had more case-file reviews than non-Asian employees but provided no documentation to support this belief.
- Her supervisor laughed on a telephone call regarding scheduling issues.
Based on this evidence and assertions, the United States Court of Appeals for the Seventh Circuit affirmed the dismissal of her claims, holding:
Chen next argues that the court erred when it concluded that she failed to demonstrate that the alleged harassment was based on her race or national origin. She points to Solano’s departure evaluation, which she believes reflected cultural bias, and her phone call with Kilmnick, insisting that he must have laughed at her because of her accent. But Chen provides no evidence to support her speculation. Her subjective belief that the complained-of conduct had a racial or national origin-related character or purpose is insufficient to create a genuine issue of material fact. See Paschall, 28 F.4th at 814. Moreover, Chen admitted in her deposition that she believed that Solano created a hostile work environment for all employees. Chen asserts that she was affected more severely by Solano’s overbearing style because she is an immigrant. But no evidence suggests that Solano was aware of Chen’s immigration status, much less that her actions were motivated by animus toward individuals born outside of the United States.
Even if Chen could demonstrate that her supervisors’ conduct was based on a protected status, we agree with the district court that it was not so severe or pervasive that it altered the conditions of her employment. Nothing in the record suggests that the conduct created a workplace “permeated with discriminatory intimidation, ridicule, and insult.” Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018) (citation omitted).
Yellen at *2.
Best Hostile Workplace Lawyer Blogs on Point:
- Speculation Cannot Support Hostile Work Environment Claim
- Gender Based Hostile Work Environment Or Cattiness?
- It’s Not A Hostile Work Environment If You Just Don’t Like Doing Your Job
Am I working in a hostile workplace?
If you are experiencing harassment or discrimination in your workplace due to factors such as race, national origin, gender, age, religion, LGBTQ+ status, or disability, or if you suspect that you are in a hostile work environment, it is recommended that you contact an attorney who specializes in employment law. With Spitz, The Employee’s Law Firm, you can schedule a free and confidential consultation with skilled employment attorneys. We offer the Spitz No Fee Guarantee and have attorneys available in Ohio, Michigan, North Carolina, and Kentucky to provide you with immediate assistance. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Our dedicated team is committed to protecting employees’ rights and resolving employment disputes. Learn more about why having skilled employment attorneys is critical and how to avoid hiring the wrong attorney by reading our resources on employment law.
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