November 14th, 2013 | Lorene Park

By Lorene D. Park, J.D.

Fed up with a supervisor who tells dirty jokes, repeatedly drops F-bombs, or yells at subordinates for each mistake? Unless your boss treats some subordinates better than others and the difference is due to race, gender, religion, or other “protected” class, your potential responses do not include a successful lawsuit under federal law. Title VII is not a general civility code, or so we are told repeatedly by courts in opinions dispensing with claims by employees who were subjected to lewd, crude, and socially unacceptable language and behavior ― on an equal opportunity basis. Two other common flaws in cases where employees sue for a hostile work environment include a court finding inappropriate comments “isolated” (though perhaps the average person would disagree) or when the comments are directed at others and the employee simply has the misfortune of bearing witness.

Equal opportunity jerks. In one case, an African-American employee claimed his supervisor at a medical waste plant violated Title VII by repeatedly using profanity. He liked to yell and use phrases like “get your ass to work” and “don’t you ever f’ing do that again.” Granting summary for the employer, the federal court in Minnesota explained that even assuming the profanity was sufficiently severe to be considered harassment, the employee failed to show that it was based on race (Senter v Stericycle, Inc). In another case, a pregnant employee whose supervisor repeatedly called her “fat ass” and “fat cow” and made “mooing” noises in staff meetings, had her claims tossed by a federal court in Florida because she could not show non-pregnant employees were treated any better (Lewis v Aaron’s Sales & Lease Ownership, Inc). Conversely, a federal court in Louisiana refused to dismiss the claim by customer service rep that his supervisor yelled at him, wrote him up, and otherwise harassed him based on his race. The employer failed to provide competent evidence supporting its defense that the supervisor treated everyone poorly (Williams v Shred-It). As these cases show, you might succeed on a claim that your supervisor treats one class of employees better than another, but you can’t really sue someone under federal law for being an equal opportunity jerk.

“Isolated” comments. One thing I find interesting in reading these cases is when a court finds that “reprehensible” racist comments were too “isolated” to create an actionable hostile work environment (HWE). For example, in one federal case out of North Carolina, an African-American employee based her claim on allegations that her supervisor accused her of “not working and would snap her fingers” at her because “that is the only way ‘you people will listen;’” and said that she had to watch the employee carefully because “‘y’all blacks are sneaky people’ and are always trying to get around the rules.” In the court’s view, this wasn’t “sufficiently severe or pervasive” to create a racially hostile environment, though the fact that the employee was fired after complaining of the supervisor’s conduct was enough to support her discriminatory discharge and retaliation claims (Tims v Carolinas Healthcare System).

This type of holding is quite common and, I think, problematic because it really should be up to a jury to determine if comments like these were enough to create a HWE under Title VII. The fact that reasonable people could differ in their opinions is shown by the fact that other courts, under similar facts, would decline to impose judgment as a matter of law because even “isolated” comments can be severe enough to create an actionable HWE. Indeed, in one case, a D.C. Court of Appeals revived an employee’s HWE claim based on allegations that a company executive called him the n-word and that he was told he was being paid a lot of money for a young black man. “‘[P]erhaps no single act can more quickly alter the conditions of employment’ than ‘the use of an unambiguously racial epithet such as n***er by a supervisor’” (Ayissi-Etoh v Fannie Mae). The supervisor in the Tims case above used the phrases “you people” and “y’all blacks.” I would think some juries would find those to be unambiguously racist.

When others are targeted. Even if the derogatory comments are race or gender related and are severe or pervasive, a court may toss Title VII claims if the employee was not the target of the comments but simply had the misfortune of overhearing them. For example, a Puerto Rican employee’s Title VII discrimination claims failed because his supervisor’s many inappropriate comments, including discussing females’ body parts, calling Puerto Rican’s pigs, making fun of accents, using the n-word when referring to black customers, and suggesting a sexual remedy for a female worker’s constipation, were not directed at the employee who filed suit. The silver lining in this case was that the employee’s retaliation claim survived summary judgment. He was allegedly sabotaged by the supervisor after complaining of what he reasonably believed was unlawful behavior (Saliceti-Valdespino v Wyndham Vacation Ownership).

What to do. The take-away is that, generally, having a supervisor who is an equal-opportunity jerk is not a good basis for a lawsuit. Even if the hostility is based on a protected characteristic like race, or gender, there are other legal hurdles such as a court’s consideration of whether the conduct was “severe or pervasive” enough and whether it was directed at the employee filing suit. However, employees in such situations are not without recourse. If the company has an anti-harassment policy, they can follow the steps for reporting inappropriate conduct. Complaining of harassment that an employee reasonably believes is unlawful is considered a “protected activity” under Title VII and any retaliatory actions by the supervisor or company against the employee can support a lawsuit. From a company perspective, defending a lawsuit is going to be expensive and burdensome regardless of the type of claim (harassment versus retaliation). There is thus a strong incentive for companies to take complaints seriously and adequately deal with supervisors who abuse subordinates, regardless of whether they are equal opportunity jerks.