As a result, employers began to focus their training efforts more on minimizing their own liability than enforcing civility. In that case, a postal employee claimed she was subjected to age and race discrimination because:  her vehicle was searched at work; an investigation was conducted into her work absences; and, she was assigned “culling belt work” (an unfavorable assignment). Off-color, distasteful, and even vulgar remarks may not necessarily result in liability for employers. But, even that harassment must be so severe and pervasive that it alters an employee’s terms and conditions of employment. The foregoing observations on the state of the law are not intended to encourage employers to be jerks to their employees. Nevertheless, employers should promptly and thoroughly investigate alleged claims of workplace misconduct to ensure isolated remarks do not transform into a truly hostile working environment. Eileen Ahern v. Eric K. Shinseki, Secretary, Department of Veteran’s Affairs (No. In short, if an employer is too much of a jerk, and the employer’s conduct is aimed at a protected characteristic, an employee may be able to sue — even if they resign. Sometimes, there’s a fine line between behavior that’s boorish and behavior that will violate the law. Moreover, sometimes a court will allow an employee to sue for “constructive discharge.”  A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that an employee is compelled to resign. As a result, the court upheld summary judgment in favor of the employer and against the former employee in her wrongful termination action. They argued that his management style created “stressful working conditions” and a hostile work environment. The California court’s interpretation that its state anti-discrimination law is not a “civility code” is in line with other cases addressing alleged “stray” and “isolated” discriminatory remarks. The court noted that, “Toiling under a boss who is tough, insensitive, unfair, or unreasonable can be burdensome, but Title VII does not protect from the ‘ordinary slings and arrows that suffuse the workplace every day.”  The court noted that, “generally disagreeable behavior and discriminatory animus are two different things.”.
Employers should also endeavor to ensure their workplace culture is free of offensive and distasteful language, apparel, and content. All rights reserved. A number of state cases and federal cases focus on whether a “reasonable person” would construe alleged “offensive remarks” to be so severe and pervasive such that s/he would be compelled to resign employment. Ap’x 890 (11th Cir. In fact, there is nothing illegal about harassing employees — unless that harassment is bad-enough and based upon a protected characteristic like race, sex or age. Copyright © 2020 Steptoe & Johnson PLLC. Instead, Title VII is supposed to prevent discrimination at work. The DVA concluded that the manager had not engaged in discriminatory practices but that his abrasive management style had contributed to a serious morale problem in the department. Employers, much as they would like, simply cannot rid the workplace of all instances of inappropriate employee behavior.”. Indeed, positive morale is a vital component of any workplace. Internet subscribers and online readers should not act upon the information contained herein without seeking professional counsel. Some obvious examples of conduct that will get you sued, however, are repeated use of the “N” word toward African-American employees, and touching a female employee in a sensitive location. In Terris, the employee and over thirty others were laid off because of a budget shortage. A formal complaint of harassment, sexual discrimination and hostile work environment was filed, alleging that the manager was a bully, that he harbored unreasonable and unrealistic expectations, and that he was setting the employees up to fail. The U.S. Supreme Court has opined that Title VII is not a “general civility code for the American workplace.” Instead, the Court opined that in the sexual harassment context Title VII is directed at prohibiting “discrimination based on sex, not merely conduct tinged with offensive sexual connotations.” Citing anxiety and stress induced by the manager’s tactics, each of the plaintiffs looked for new positions, and eventually left the hospital. The appeals court agreed with the District Court on all issues, holding that summary judgment was appropriate. The appeals court addressed this issue head-on in noting that, “Title VII does not create a general civility code for the workplace.”  The plaintiff’s burden in a summary judgment case is to show that, as a result of discrimination, “working conditions were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign.”  The court recalled the DVA’s report in addressing this issue. The case is most significant as to the plaintiffs’ claim that the poor treatment they received at the hands of their manager forced them to leave the hospital. Subscribe today to receive firm newsletters and blogs, client updates, seminar announcements, and more according to your preferences and areas of interest. section 2000, was enacted on July 2, 1964 and signed into law by President Lyndon Johnson. Although the change in the work schedule was never implemented, internal strife continued. Title VII: Being a Jerk Is Not Discrimination. In so doing, the appeals court underscores the importance of investigating complaints of discrimination and provides some great language for employers responding to discrimination complaints. Please contact Steptoe & Johnson PLLC at (304) 933-8000 if you have any questions. As a result, giving discriminatory job assignments, in many cases, won’t be illegal.
Some employers may feel compelled to become hyper-sensitive to alleged offensive misconduct.

While the manager’s style had “left much to be desired,” and his actions had “created divisiveness and unrest,” the report made it clear that he had not engaged in discriminatory practices. I frequently hear the complaint:  “I’m being harassed, and that’s illegal!”  In the employment law context, however, there is nothing illegal about being a jerk. However, U.S. Supreme Court Justice Clarence Thomas recently stated, “At some point, we’re going to be fatigued with everybody being the victim.”  In the employment arena, an employee may have a difficult time proving wrongdoing by the employer for permitting offensive remarks to go unchecked when no tangible, adverse employment action has been taken against that employee. Finally, the court found that there was no evidence between the “stray remarks” and the selection of employees to lay off. The plaintiffs made numerous complaints about decisions of an administrative manager in charge of operations. See Coles v. Post Master General, 711 Fed. When the manager decided to reconfigure work schedules in the department (from four ten-hour days to five eight-hour days), the plaintiffs complained of retaliation. Do not send information to us until you speak with one of our lawyers and obtain authorization to do so. Employees frequently think that they should be able to sue under Title VII of the Civil Rights Act of 1964 because their boss, or a co-worker, is mean to them. The Eleventh Circuit found that treatment was not an “adverse employment action” under Title VII. The U.S. Supreme Court has opined that Title VII is not a “general civility code for the American workplace.” Instead, the Court opined that in the sexual harassment context Title VII is directed at prohibiting “discrimination based on sex, not merely conduct tinged with offensive sexual connotations.”, States’ highest courts have also adopted this rationale. Similarly, just being mean to an employee, even if based on a protected characteristic, does not violate Title VII. For example, last year, the Eleventh Circuit affirmed dismissal of a Title VII action filed against the Post Master General. There is abundant case law holding that Title VII is not a general civility code. 2017). Here, the employer’s own documented investigation served as the foundation of the court’s ruling that discrimination had not occurred. All rights reserved. The District Court dismissed all of the plaintiffs’ claims. Title VII of the Civil Rights Act of 1964, codified in 17 U.S.C. Employment Essentials is written by attorneys and other professionals at Steptoe & Johnson PLLC. Eileen Ahern v. Eric K. Shinseki, Secretary, Department of Veteran’s Affairs (No. 09-1985) (1st Circuit, Dec. 10, 2010). That is precisely what happened here. Prior results on any matter noted on this website do not guarantee a similar outcome. Please wait while we gather your results. Instead, Title VII is supposed to prevent discrimination at work. Such an action must have a tangible adverse effect on the plaintiff’s employment. It is not designed to make sure that people “get along” in the workplace. Plaintiffs claimed that, by management’s behavior, they were “constructively discharged.”. The appeals court addressed this issue head-on in noting that, “Title VII does not create a general civility code for the workplace.” The plaintiff’s burden in a summary judgment case is to show that, as a result of discrimination, “working conditions were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign.” The court recalled the DVA’s report in addressing this issue. The First Circuit Court of Appeals affirmed a federal District Court’s grant of summary judgment against the plaintiffs in a lawsuit brought under Title VII of the Civil Rights Act of 1964.

And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized inMeritor andHarris , the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The Department of Veteran Affairs (DVA) investigated the complaint and issued findings. Read the full biography of Zachary Bombatch at Steptoe & Johnson, WEST VIRGINIA SUPREME COURT FINDS CLAIMANT’S DEATH TO BE WORK-RELATED EVEN THOUGH HIS HEAD INJURY OCCURRED OVER A YEAR PRIOR WITH NO INTERVENING TREATMENT, LexisNexis Labor & Employment Law Community. In terms of parsing federal court decisions, any time you see federal judges start off by quoting the Supreme Court’s aphorism that Title VII is not a general civility code for the work place, you should be suspicious that they are about to enforce Title VII as if it is a general civility code for the work place. Sundowner Offshore Services, Inc., Justice Scalia wrote that Title VII, the federal law prohibiting sexual harassment in the workplace, does not create a general “civility code” for the workplace. Get practical insights on COVID-19 legal issues for employers. The Civil Rights Act of 1964 was enacted in response to the civil rights movement of the 50s and 60s. For example, in West Virginia, the Supreme Court of Appeals has opined that “federal as well as state anti-discrimination laws are not codes of civility. She further claimed that the employer’s CEO used derogatory slurs to describe homosexuals eight years prior to her dismissal which purportedly substantiated her motivating factor claim. California’s intermediate appellate state court recently ruled in Terris v. County of Santa Barbara that a county employee failed to demonstrate that alleged vulgar, derogatory remarks about homosexuals made by her former employer’s CEO were connected to her termination of employment.


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