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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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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