Oh, the drama! A couple of recent cases warn employers that drama that happens in the workplace may give rise to liability for workplace harassment.
In one case, Sanderson v. Wyoming Highway Patrol, the female trooper performed well and won awards – but was the subject of widespread rumors about her supposed sexual promiscuity with colleagues and supervisors and using her sex to gain advantages, like a new patrol car and promotions. Her male co-workers ostracized her and mocked her. They called her the “division bicycle” – meaning that everyone got to … well, you know. After an altercation in which she called a male co-worker an “a**hole,” she was demoted. She then sued, claiming among other things that a hostile environment existed.
To establish a hostile work environment claim, a plaintiff must show that the harassing conduct was so severe and pervasive that “the workplace is permeated with discriminatory intimidation, ridicule, and insult.” The federal district court found no hostile environment existed (huh), but on appeal, the U.S. Court of Appeals for the Tenth Circuit reversed the district court’s decision. The Tenth Circuit found that the alleged harassment was sufficiently severe and pervasive to support the hostile environment claim – the rumors were persistent, repeated, and circulated by multiple colleagues. Combined with other non-sex-based but negative conduct, this could be enough for a jury to find a violation of Title VII’s prohibitions on harassment.
In the other case, Okoli v. Michelin North America Inc-BF Goodrich, the Nigerian-born employee complained that his supervisor and co-workers harassed him because of his race – making fun of his accent and name-calling. Although the supervisor’s behavior improved after HR intervened, the co-workers’ harassment apparently got worse. According to the employee, they called him vile names. They made animal noises (lions and gorillas and monkeys – oh my!). They asked him when he would go back to his country. The employee repeatedly complained and the company investigated, but was never able to substantiate his complaints. So he sued.
Under the law, an employer will be liable for co-worker harassment if it knew or should have known about the harassment and failed to stop it. The company asked the federal district court to throw out the complaint, in part, because it had promptly investigated the employee’s formal complaints, and because the employee had not complained about many of the actions he was now raising. But the court noted that many of the actions involved “loud, boisterous exclamations made in crowded areas of the plant.” The court refused to toss the lawsuit, finding that a reasonable juror could find that the co-workers’ actions were “sufficiently obvious” to put the employer on notice of the harassment.
In our practice, we’ve seen some companies throw up their hands when it comes to rumors and bullying behaviors in the workplace. These behaviors have been exacerbated by personal social media activity. We hear, “How can we stop it?” “It’s personal, not work.” “It’s just goofing around.” But as these cases show – employers are at risk if they ignore these behaviors. And we understand that addressing this conduct can be challenging – there’s no easy solution. But there are steps that employers can take:
- Make sure to have an effective harassment policy – and make sure your employees know about it.
- Don’t ignore complaints – including complaints about rumors.
- Don’t ignore outbursts or teasing – particularly involving protected characteristics like race or sex, even if no one complains.
- Just because you have a he-said/she-said situation doesn’t always mean that you can’t make a determination – there will be times when you can choose to believe one person over another (although it would be wise to consult your employment counsel if you’re dealing with such a situation).
- Actively remind employees about the harassment policy if there are workplace issues – even if you can’t confirm the issues actually occurred.
- If you can identify particular troublemakers, address them one-on-one. Set standards and expectations for their conduct. Discipline or counsel, as appropriate.
No drama, folks.