Category Archives: Hostile work environment

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).

Con­tinue read­ing Fifth Cir­cuit applies hos­tile work envi­ron­ment to age claims

Single act may create hostile work environment, according to Seventh Circuit in Berry v. Chicago Transit Authority

A few days ago, I posted my arti­cle on PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , in which the West Vir­ginia Supreme Court ruled that a sin­gle episode involv­ing mul­ti­ple uses of the N-word could cre­ate a racially hos­tile work envi­ron­ment.

The US Court of Appeals for the Sev­enth Cir­cuit just released an opin­ion in Berry v. Chicago Tran­sit Author­ity, – F.3d –, – WL — (7th Cir. August 23, 2010), which raises the sim­i­lar issue: Can a sin­gle instance of sex­ual harass­ment cre­ate a hos­tile work envi­ron­ment? And the answer was yes, depend­ing on the circumstances.

Ms. Berry is Sex­u­ally Harassed in a Sin­gle Incident

Cyn­thia Berry was an employee at the Chicago Tran­sit Author­ity. She was on her break and sat at a pic­nic style table with three male co-workers. A fourth male co-worker, Philip Carmichael, had fol­lowed her to the pic­nic area and ordered Ms. Berry to get up from the table. Offended by Mr. Carmichael’s “com­mand­ing tone”, Ms. Berry remained seated. Mr. Carmichael then sat down and “strad­dled the bench” so he was fac­ing one of the male co-workers at the pic­nic table, and so that Mr. Carmichael’s back was close to Ms. Berry. The other three male co-workers got up from where they were seated at the pic­nic table and moved to the other end of the table. Then:

Berry says Carmichael remained where he was seated and began rub­bing his back against her shoul­der. She jumped up, told him not to rub him­self against her, and sat down next to Hardy at the other end of the table. At this point,
Berry says, Mar­shall began telling her to get up from the table again. Not want­ing Mar­shall to think he could order her around, she remained seated, but began rub­bing her tem­ples to com­pose her­self. Accord­ing to Berry, she next felt Carmichael grab­bing her breasts and lift­ing her up from the bench. Hold­ing her in the air, he rubbed her but­tocks against the front of his body—from his chest to his penis—three times before bring­ing her to the ground with force. Berry landed off-balance, with only one leg on the ground, and says Carmichael then pushed her into a fence. Upset and want­ing to avoid any men, she lay down in a bus for the rest of her shift.


Con­tinue read­ing Sin­gle act may cre­ate hos­tile work envi­ron­ment, accord­ing to Sev­enth Cir­cuit in Berry v. Chicago Tran­sit Author­ity

The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!

Okay, this arti­cle has noth­ing to do with Dr. Laura Sch­lessinger and her “rant” in which she used the N-word repeat­edly on her radio pro­gram when respond­ing to an African-American caller. But the ensu­ing con­tro­versy (see arti­cles for and against Dr. Laura), and her deci­sion to end her long-running radio pro­gram, high­light the extra­or­di­nary sig­nif­i­cance of the N-word term in Amer­i­can society.

The West Vir­ginia Supreme Court recently dealt with the N-word in a case that high­lights the great risks for employ­ers when that word enters the workplace.

In PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , — W. Va. –, — S.E.2d –, 2010 WL 2244096 (June 3, 2010) (per curiam), the West Vir­ginia Supreme Court dealt with a claim of a racially based hos­tile work envi­ron­ment under the West Vir­ginia Human Rights Act, and con­cluded that the West Vir­ginia Human Rights Com­mis­sion was jus­ti­fied in find­ing for the employee. The deci­sion was unan­i­mous. Click here for the WV Human Rights Com­mis­sion’s deci­sion which was affirmed by the WV Supreme Court.

A Sin­gle Day, With the N-Word Again and Again

PAR Elec­tri­cal was build­ing “giant tow­ers” for a high volt­age elec­tri­cal trans­mis­sion line. Richard Wayne Bev­elle was hired by PAR Elec­tri­cal on March 22, 2005, and, after work­ing as a “ground­man” assem­bling the tower bases, was assigned to load heli­copters with parts to con­struct the tow­ers (this heli­copter job was described as a “gravy job” by the Human Rights Com­mis­sion). Mr. Bev­elle is African-American.

Con­tinue read­ing The dis­as­trous con­se­quences of the N-word in the work­place. Just ask Dr. Laura!

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

I will be speak­ing (and pre­sent­ing arti­cles)  at a sem­i­nar spon­sored by Ster­ling Edu­ca­tion Ser­vices on Octo­ber 20, 2010 in Mor­gan­town, West Vir­ginia, enti­tled “Fun­da­men­tals of Employ­ment Law”.

I will be speak­ing (and pre­sent­ing arti­cles) on “Sex­ual, Racial, and Other Harass­ment in the Work­place” and “ADA and FMLA Update”.

Here is the full agenda, and here is the fac­ulty infor­ma­tion. The sem­i­nar will pro­vide around 6–8 hours of con­tin­u­ing edu­ca­tion credit for lawyers (I don’t know the exact num­ber, but the sem­i­nar is a full day).

You can reg­is­ter for the the sem­i­nar online. For fur­ther infor­ma­tion, you can con­tact Ster­ling, and their num­ber is 715–855-0498.

Sorry boss, I didn’t know you were having sex in the office!!

The West Vir­ginia Supreme Court recently issued an opin­ion deal­ing with one of those stereo­typ­i­cally awk­ward sit­u­a­tions, where an employee allegedly stum­bles into a room where the boss is hav­ing sex with a co-worker. The deci­sion was  Roth v. DeFe­lice­Care, Inc., – W. Va. –, — S.E.2d –, 2010 WL 2346248 (June 8, 2010) (per curiam). It was a 3–2 deci­sion, in which the 3-vote major­ity con­sisted of Jus­tices Robin Davis, Mar­garet Work­man, and  Thomas McHugh. Jus­tices Menis Ketchum and Brent Ben­jamin dis­sented, and Jus­tice Ketchum wrote a dis­sent­ing opinion.

The Facts–Sex at Work

These are the facts accord­ing to the com­plaint in the law­suit: Tri­cia Roth was a res­pi­ra­tory ther­a­pist work­ing at DeFe­lice­Care, Inc. in Ohio County, West Vir­ginia, and she was about to go on vaca­tion. She was directed by Leslie DeFe­lice (the male boss/owner) to come to work some­time dur­ing the week­end pre­ced­ing her vaca­tion in June 2006. She was not told a spe­cific time to come to work dur­ing that week­end. When she came to work as ordered, she “observed Defen­dant [Leslie] DeFe­lice and/or Michelle Kelly par­tially clothed and in a com­pro­mis­ing posi­tion”. Mr. DeFe­lice instructed Ms. Roth to go into a con­fer­ence room and wait–meanwhile Mr. DeFe­lice and the other employee got all their clothes back on. Mr. DeFe­lice then talked to Ms. Roth and told her to for­get about what she had just seen, and threat­ened Ms. Ross with the loss of her res­pi­ra­tory ther­apy license and the loss of her employment.

Ms. Roth then went on vaca­tion. When she got back from vaca­tion and returned to work, she had a meet­ing with Mr. DeFe­lice that didn’t go well. Ms. Roth told Mr. DeFe­lice that she hadn’t told any­one about his sex­ual encounter at work. Mr. DeFe­lice pro­ceeded to fire Ms. Roth because “he did not like how she was dressed” and “he did not like the style[/]color of her hair”.

Ms. Roth Files Suit–Case Dismissed

Ms. Roth then filed suit on legal the­o­ries cen­ter­ing around sex dis­crim­i­na­tion and sex­ual harass­ment, and–bada bing!–the case promptly got dismissed.

Ms. Roth’s com­plaint (the doc­u­ment which starts the law­suit and describes the plaintiff’s alle­ga­tions) focused on the sex­ual inci­dent I have described above, but also made alle­ga­tions about other sex­ual harassment–I will dis­cuss those details below.

Con­tinue read­ing Sorry boss, I didn’t know you were hav­ing sex in the office!!

Can you be sexually harassed behind your back?

It might be obvi­ous, but it seems a bit dif­fi­cult to win on a claim for sex­ual harass­ment where all of the harass­ment occurs behind your back (and by “behind your back”, I mean sit­u­a­tions where the harass­ing behav­ior occurs when the com­plain­ing employee is not phys­i­cally present to expe­ri­ence or hear what is happening).

The Fourth Cir­cuit Court of Appeals addressed this issue in Pueschel v. Peters, 577 F.3d 558 (4th Cir. 2009), in a unan­i­mous deci­sion writ­ten by Judge Roger Gre­gory in which Judges M. Blane Michael and Robert Bruce King joined.

The Fourth Cir­cuit didn’t have much dif­fi­culty reach­ing the con­clu­sion that, for any claim alleg­ing a hos­tile work envi­ron­ment (includ­ing sex­ual harass­ment), you can’t suc­ceed if all of the mis­con­duct about which you com­plain occurred at work when you were not at work.

Twenty Eight Years of Litigation!!!

This case grows out of an incred­i­bly long his­tory of lit­i­ga­tion (includ­ing sev­eral dif­fer­ent law­suits and appeals (some of which were suc­cess­ful)) filed by Ms. Pueschel against her employer, the Fed­eral Avi­a­tion Admin­is­tra­tion (“FAA”). The lit­i­ga­tion started in 1981 and ended with this Fourth Cir­cuit deci­sion in 2009 (I am not kid­ding, and I am not sure this deci­sion marks the end of all of her litigation).

Con­tinue read­ing Can you be sex­u­ally harassed behind your back?

WV Supreme Court rules that employer’s policy and prompt action protected it against liability; Colgan Air v WV HRC; 10/25/07

West Virginia Capitol Building at Night Octo­ber 25, 2007: In Col­gan Air, Inc. v. West Vir­ginia Human Rights Com­mis­sion, 221 W. Va. 588, 656 S.E.2d 33 (1977) the West Vir­ginia Supreme Court addressed claims of harass­ment (based on reli­gion and national ori­gin) and retal­i­a­tion under the WV Human Rights Act, W. Va. Code § 5–11-1 et seq.

The plain­tiff was a pilot, Rao Zahid Khan, who alleged that his co-workers sub­jected him to fre­quent deroga­tory and insult­ing com­ments about his national ori­gin and reli­gion (he was Ara­bic). The West Vir­ginia Supreme Court ruled that Col­gan Air (a) was not liable for harass­ment because it had poli­cies and pro­ce­dures pro­hibit­ing harass­ment and took swift and deci­sive action after learn­ing about the harass­ment, and (b) was not liable for retal­i­a­tion because Col­gan Air ter­mi­nated the employee (Mr. Khan) for a legit­i­mate and non-discriminatory reason–he failed to pass a manda­tory FAA pro­fi­ciency test for pilots.

Con­tinue read­ing WV Supreme Court rules that employer’s pol­icy and prompt action pro­tected it against lia­bil­ity; Col­gan Air v WV HRC; 10/25/07