June 21st, 2013 | Lorene Park
When facing hostile work environment (HWE) claims based mostly on derogatory comments linked to gender, race, or other protected characteristics, courts seem to have a mantra that Title VII is not a “general civility code for the American workplace” and often find the comments were either “stray remarks” or not severe or pervasive enough to support a HWE claim (in many cases, courts note that no physical threat or harm was involved).
Truly, it’s a sticks-and-stones-can-hurt-me kind of world and even the n-word (which you would think EVERYONE knows is offensive) won’t support a HWE claim if it is used only once or twice, depending on the court (e.g., Denham v Wal-Mart Stores East, LP, SDAla, March 26, 2013). However, courts have limits when it comes to certain “nicknames” and it wouldn’t hurt to keep that in mind when conducting training. Here are some points you might make to employees:
Don’t comment on physical attributes at all; just don’t. Given that many of the categories protected by state and federal anti-discrimination laws have some relationship to the way someone looks, you might as well train employees to zip it when it comes to being a personal mirror. Don’t comment on color, hairstyle, body shape, or even that someone looks stunning in a new outfit. Yeah, it might seem harsh, but it’s the modern workplace in a litigious world. Most especially, don’t make “fun” of someone about their physical attributes (real or imagined).
For example, an employee who was repeatedly called “Little Jimi” and “Teeny Tiny” in reference penis size (while the speaker was wiggling his little finger) survived summary judgment on his sex-based HWE, emotional distress, and negligent supervision and retention claims (Hayes v Erickson Air-Crane Co, DOre, June 18, 2013). The court found it significant that his supervisors and coworkers used the nicknames “uncountable” times. In another case, even though an employee never reported sexually harassing comments by her female manager on her body (including her breasts), she survived summary judgment on her claim that the comments were part of a sexually hostile environment (Sell v BC International Group, WDPa, May 16, 2013). To the court, her seven transfer requests in a relatively short period of time put the employer on notice that something was wrong. Ya think?
What plays in the theaters does not play well in the workplace. One of the nicknames used for the employee in the Hayes case was “Dodgeball,” a reference to an egomaniacal character in a movie of the same name who used a penis pump to enlarge his genitals. Obviously, the movie character was created to make audiences laugh (though not some critics, apparently) but certainly the employee did not find the moniker amusing and the employer was left to pay for the lawsuit. In another case, a Jordanian employee who was routinely compared to “Borat” survived summary judgment on his race and national origin based HWE claims (Zayadeen v Abbott Molecular, Inc, NDIll, January 30, 2013). Though his national origin was different from the fictional character Borat’s, the court observed that it “makes no difference whether [the employee’s] harassers did not understand or intentionally fuzzed the distinction between Jordan and Kazakhstan when engaging in the harassment.” The lesson here? You can discuss a movie but don’t compare your coworkers or subordinates to movie characters.
Terms of endearment in the home are not endearing at work. You may call your dad “old man” or “pops” but don’t even think about calling a coworker or subordinate that. Just because you see someone at work every day does not mean you can take the same liberties that you would take within your family. For example, an employee called “old fart” or “old finance guy” in meetings and “old man” on the floor of a car dealership survived summary judgment on his age-based HWE claims (Alzuraqi v Group 1 Automotive, Inc, NDTex, February 1, 2013).
Some derogatory terms are so taboo you might as well plan for a jury trial. Usually, context matters in HWE claims, but that is not always the case — particularly where “inherently offensive” terms are involved. For example, the repeated use of the n-word is a one-way ticket to a jury trial. That one is obvious, but there are more. In one recent case, a court found the terms “gook” and “slap-a-ho” inherently offensive when used many times and ruled that the targeted employee (of Thai and Hawaiian race), could proceed on his HWE claims (Christopher v Spectra Electrical Services, Inc, DAriz, June 19, 2013). In another case, a police officer who complained of a superior officer’s regular use of the term “Pollock” could proceed on his Title VII and equal protection claims (Zasada v City of Englewood, DColo, March 29, 2013). And in third case, a Muslim-American proceeded on his religion-based HWE claim after a manager repeatedly called him ““towelhead;” “terrorist;” and “f**king Muslim,” among other choice nicknames (Alzuraqi v Group 1 Automotive, Inc, NDTex, February 1, 2013).
Interestingly, a federal district court in Hawaii ruled that an employee, who was of Columbian nationality and had a thick Spanish accent, could proceed on “perceived as” Mexican HWE claims against his timeshare employer after he was repeatedly called “wetback,” “Pancho Villa,” and “amigo” (Henao v Wyndham Vacations Resorts, Inc, DHaw, February 26, 2013). Clearly a little cultural sensitivity training could go a long way.
The list could go on but the message is clear. Take measures to avoid or reduce liability by: having effective policies in place to address harassment (including word-use, nicknames), training employees (and reminding them annually) on the policies, enforcing them as soon as possible after receiving reports (e.g., separate the alleged harasser from the target, issue a corrective action plan, and require re-training), and ensuring that the employee who made the report experiences no further harassment and is not otherwise treated poorly for having spoken out. If it is a supervisor who has made the offensive comments, the measures should be more severe. In some cases courts have looked kindly on employers who removed supervisory responsibilities, at least until the supervisor went through training.