In our last article, we analyzed two cases which addressed the creation of a hostile work environment. One more case in this trilogy adds additional insight on this issue.
In order to establish a case of hostile work environment based on her gender, a female employee must provide evidence that the alleged harassment was severe or pervasive and the hostile work environment was created by her gender. Consider these facts:
A female employee returned from a lengthy leave from a work-related injury. She was assigned to a light-duty desk job, working under a different supervisor.
Immediately, the employee and supervisor did not get along. The supervisor assigned the employee to a series of menial (in the employee’s mind) and demeaning tasks. For example, he had her alphabetize the same files over and over again and had her review and take notes on a video he had already reviewed.
The employee also complained the supervisor isolated her from the other co-workers in her department. He allegedly barred her from department meetings and ordered the co-workers not to speak with her.
Finally, the employee alleged the supervisor made offensive comments, not directly towards her, but within her earshot. For example, on one occasion, the supervisor stated he could slap “that woman” and get a promotion for it.
Did these incidents create a hostile work environment based on the employee’s gender? The court said it was a close call, but there was enough evidence for a jury to hear the case.
The comment about “that woman” was evidence the supervisor’s negative attitude was gender-driven. But, were the individual incidents severe or pervasive?
The court clarified the rule in this regard. It held in these types of cases, courts should not separate the alleged incidents and treat them in isolation. Rather, the court should consider the totality of the circumstances. The court stated a jury could aggregate all of the incidents and find that taken as a whole, they created a hostile work environment.
This is an important case for employers. It may be far too easy to dismiss a particular incident, believing that by itself it is not severe enough to merit a response. However, when multiple incidents occur, the totality of them may create a claim.