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.

About Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 25 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
Age Discrimination, Constructive discharge, Hostile work environment, Result for Employee, Title VII of the Civil Rights Act of 1964Permalink