Courts have sometimes questioned whether hostile work environment claims apply to all “flavors” of discrimination. Hostile work environment claims most frequently arise in claims of sex discrimination and race discrimination claims under Title VII of the Civil Rights Act of 1964, but age discrimination claims under federal law arise under a different statute, the Age Discrimination in Employment Act of 1967.
The Fifth Circuit directly held recently that hostile work environment claims are encompassed by age discrimination claims under the ADEA in Dediol v. Best Chevrolet, Inc., — F.3d — (5th Cir. September 12, 2011).
Milan Dediol was a 65 year old car salesman for Best Chevrolet. Dediol eventually quit (claiming constructive discharge) because of a series of age-biased insults and physical threats. Dediol claimed the following remarks were made by his boss, Donald Clay, the used car sales manager:
- Dediol requested permission to take off from work for the next morning—July 4, 2007—to volunteer at a church event. Dediol received permission from Clay’s assistant manager, Tommy Melady (“Melady”), but Clay overruled Melady in derogatory terms. Dediol alleges that Clay told him, “You old mother******, you are not going over there tomorrow” and “if you go over there, [I’ll] fire your f*****g ass.”
- After his request to take off from work for the morning of July 4th, Clay never again referred to him by his given name, instead calling him names like “old mother******,” “old man,” and “pops.” Clay would employ these terms for Dediol up to a half-dozen times a day from on or around July 3, 2007, until the end of his employment. Dediol also claims that “[Clay] stole a couple of deals from me[,]” and directed them towards younger salespersons.
- Clay denied Dediol’s request for a transfer to sell new cars and stated, “Get your old f*****g ass over here. You are not going to work with new cars.” On many occasions, there were incidents of physical intimidation and/or violence between Clay and Dediol. According to Dediol, Clay would threaten him in a variety of ways, including threats that Clay was going to “kick [Dediol’s] ass.” On one occasion, Clay took off his shirt, and stated to Dediol, “You don’t know who you are talking to. See these scars. I was shot and was in jail.”
- Tensions escalated and reached a climax at an office meeting on August 29, 2007. During an increasingly volatile exchange, Clay proclaimed, “I am going to beat the ‘F’ out of you,” and “charged” toward Dediol in the presence of nine to ten employees.
Dediol eventually quit, claiming he was forced to quit by the discriminatory and threatening remarks. After Dediol filed suit, the trial judge granted Best Chevrolet’s motion for summary judgment, dismissing the case. Dediol appealed and the Fifth Circuit reversed, concluding that hostile work environment claims are available under the ADEA, and that Dediol presented sufficient evidence to proceed to trial.
Hostile Work Environment Applies to Age Claims Under ADEA
We now hold that a plaintiff’s hostile work environment claim based on age discrimination under the ADEA may be advanced in this court. A plaintiff advances such a claim by establishing that (1) he was over the age of 40; (2) the employee was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer.
To prove the third element, that the harassment created an “objectively intimidating, hostile, or offensive work environment,” the Fifth Circuit explained :
A workplace environment is hostile when it is “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently pervasive to alter the conditions of the victim’s employment.” Alaniz v. Quezada, 591 F.3d 761, 771 (5th Cir. 2009). Moreover, the complained-of conduct must be both objectively and subjectively offensive. EEOC v. WC&M Enters., 496 F.3d 393, 399 (5th Cir. 2007). This means that not only must a plaintiff perceive the environment to be hostile, but it must appear hostile or abusive to a reasonable person. Id. To determine whether conduct is objectively offensive, the totality of the circumstances is considered, including: “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it interferes with an employee’s work performance.”
Here is the full Fifth Circuit opinion in Dediol: