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Gilbert Edwin worked for Clean Harbors Environmental Services, Inc., an environmental and industrial service provider, as an environmental technician, which was designated a safety position by his employer. Employment records showed that Edwin was caught sleeping on site, was frequently late, and left the plant without approval. He was written up for these incidents, and then in August 2017, was given a low performance review by his manager. Within weeks of the review, Edwin was involved in a workplace accident and went on leave for four months.

While on leave, Edwin first filed a claim for workers’ compensation in October, and then filed race/color discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) for in December. Edwin is a Black male.

After Edwin was medically cleared to return to work in January of 2018, he failed a drug test by testing positive for marijuana use and was fired pursuant to Clean Harbor’s drug policy. Among other claims, Edwin claimed that the negative performance reviews created a hostile work environment and that he was wrongfully terminated for discriminatory and retaliatory reasons, including filing with the EEOC and for workers’ compensation retaliation.

Can negative performance reviews create a hostile work environment?

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, gender, national origin, religion, sexual orientation, and gender identity. Likewise, the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”) prohibit discrimination based on disability and age respectively. A hostile work environment is a form of employment discrimination that occurs when unwelcome conduct based on a protected characteristic creates an intimidating, hostile, or offensive working environment. Importantly, mere hostility without a connection to a protected class will not be sufficient to create an actionable hostile work environment claim.

Negative performance reviews, by themselves, do not typically create a hostile work environment under these federal laws. Performance evaluations are generally considered a legitimate management tool, and employers have the right to provide feedback and critique an employee’s job performance.

However, if negative performance reviews are accompanied by other behavior or actions that are motivated by discriminatory animus based on a protected characteristic (such as race, sex, religion, etc.), it could contribute to a hostile work environment claim. For example, if an employee consistently receives negative performance reviews that are unfairly based on their race or gender, and this treatment creates an intimidating, hostile, or offensive work environment, it may be considered discriminatory.

Moreover, if Black employees are being scored or graded on a harsher scale on unequally during performance reviews, this may give rise to a disparate treatment employment claim. Disparate treatment claims are proven by a different standard than hostile work environment claims.

In Edwin v. Clean Harbors Environmental Services Incorporated, No. 22-30263, 2023 WL 4046275 (5th Cir. June 16, 2023), the United States Court of Appeals for the Fifth Circuit recently affirmed the dismissal of Edwin’s hostile work environment claim for several reasons. First, the Fifth Circuit Court of Appeals held:

Edwin fails to show how the low performance review constituted harassment based on race that contributed to a hostile work environment. The act is not “sufficiently severe or pervasive to alter the conditions of [Edwin’s] employment and create an abusive working environment,” as required to support a hostile work environment claim. WC&M Enters., Inc., 496 F.3d at 399 (cleaned up). “For harassment to be sufficiently severe or pervasive to alter the conditions of the victim’s employment, the conduct complained of must be both objectively and subjectively offensive.” Id.

To be considered severe, conduct must be significant and serious enough, which typically involves extreme or egregious behavior that significantly alters the terms, conditions, or privileges of employment. Examples of severe conduct may include physical assault, threats of violence, or highly offensive and derogatory language. To be pervasive, the conduct must be persistent, repetitive, or occurs on a regular basis over a period of time. Thus, one singular review without a pattern of other conduct was not sufficient to show that the alleged conduct was so severe or pervasive.

Next, the Fifth Circuit Court of Appeals pointed to the fact that even Edwin did not connect the poor review to his race or being Black:

Here, Edwin did not discuss the performance review being racially motivated in his EEOC report, or in his deposition. In his deposition, Edwin was repeatedly asked why he thought Bienvenu gave him poor reviews, and he never mentioned race — he answered only that Bienvenu “wasn’t a fair supervisor.” In his brief, Edwin states that Bienvenu told him he had given him poor reviews because “you don’t like your job.” Thus, Edwin fails to present evidence that the act was subjectively offensive.

The Fifth Circuit likewise held that the negative performance review in this case could not be viewed as objectively offensive. Courts assess the objective offensiveness of the victim’s work environment by examining various factors collectively. These factors include: (1) the frequency at which the discriminatory conduct occurs; (2) the level of severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or simply an offensive remark; and (4) whether it interferes with the employee’s ability to perform their job effectively. Here, the Court of Appeals held: “None of the above factors weigh in Edwin’s favor.”

Lastly, the Fifth Circuit Court of Appeals pointed to the obvious – legitimate criticism of employees’ poor performance cannot create a hostile work environment:

Moreover, “criticism of an employee’s work performance does not satisfy the standard for a harassment claim” where “the record demonstrates deficiencies in the employee’s performance that are legitimate grounds for concern or criticism,” as it does here. Thompson v. Microsoft Corp., 2 F.4th 460, 471 (5th Cir. 2021) (cleaned up). The record shows that Edwin was caught sleeping on site, was frequently late, and left the plant without approval.

If you believe you are experiencing a hostile work environment, it is advisable to consult with an employment attorney who can provide guidance based on the laws applicable to your jurisdiction and the specific details of your situation.

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Can employers fire employees for testing positive for marijuana?

Yes. Under federal law, marijuana is classified as a Schedule I controlled substance, and its use is illegal. It is important to note that even in states with marijuana legalization, employers may still have policies in place that prohibit marijuana use and can enforce disciplinary actions, including termination, for violating these policies. The Fifth Circuit Court of Appeals found in favor of the employer on this argument:

Here, Edwin points to two sections of Clean Harbors’ Alcohol and Drug policy to show that Clean Harbors had substantial discretion in his termination so its decision to terminate him was pretextual. However, “employment laws do not transform federal courts into human resources managers, so the inquiry is not whether [Clean Harbors] made a wise or even correct decision to terminate [Edwin].” Owens, 33 F.4th at 826 (cleaned up). “Instead, the ultimate determination, in every case, is whether, viewing all of the evidence in a light most favorable to the plaintiff, a reasonable factfinder could infer discrimination.” Id. (cleaned up). It was Clean Harbors’ policy to terminate any employee in a safety-position, like Edwin, who tests positive for drugs, regardless of their performance or rank, and Edwin has pointed to no evidence that his termination was actually motivated by retaliation rather than the failed drug test. Thus, Edwin has failed to show that a reasonable factfinder could infer discrimination.

Absent evidence that the employer regularly allowed other similarly situated employees to maintain employment after failing a drug test, prior permission by a manager or supervisor to use marijuana, or direct evidence from a decision maker that contradicts the reason being the failed drug test, it is very difficult (but not impossible) for an employee to prove pretext when the stated reason for termination is a failed drug test.

To determine the specific rights and obligations regarding marijuana use and employment, it is advisable to consult an employment attorney who is knowledgeable about the laws in your jurisdiction. They can provide guidance based on the specific laws and regulations applicable to your situation.

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How do I know if I have an employment discrimination or wrongful termination claim against my employer?

Employment discrimination, hostile work environment, and wrongful termination claims are complicated. The only way to really know what your legal rights are as an employee or former employee if you have been wrongfully fired, it to consult with attorneys that focus on employee’s rights laws. Thus, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky 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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