Fifth Circuit applies hostile work environment to age claims

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).

Age-Based Harass­ment

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

The Fifth Cir­cuit not­ed that it had nev­er before ruled that hos­tile work envi­ron­ment claims were avail­able under the ADEA (for age dis­crim­i­na­tion), but con­clud­ed that they were:

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:


For oth­er blog arti­cles on the Dedi­ol deci­sion, see the The Employ­er Hand­book, and The Texas Employ­ment Law Blog.

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Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
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One thought on “Fifth Circuit applies hostile work environment to age claims”

  1. It seems to me the age dis­crim­i­na­tion did cause the work­place harass­ment in and of itself. But the threats of phys­i­cal vio­lence had noth­ing to do with his age. It was these threats of phys­i­cal vio­lence that con­sti­tut­ed the work­place harass­ment. The age dis­crim­i­na­tion slurs were sim­ply the icing on the cake.

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