Thursday, February 18, 2016

A Clash of Personalities in the Workplace
Is Not a “Hostile Environment” Case

Hostile environment harassment is the most often misunderstood concept of employment law, from what we can tell.

It is widely (and wrongly) supposed that any disagreeable or unpleasant person, circumstance, situation, or event at work constitutes hostile environment harassment and equips the complaining party with rights to sue the employer and co-workers. The latest example that has been brought to our attention involves an anonymous note left at the work station of an employee. "I'm sick to death of all your talk about (presidential candidate) Donald Trump," the note said in word or in substance. "If you do it any more, I'll go to H.R. and have you fired." The “missing link” in that case, as in so many others, is illegality.

Hostile environment harassment, which appears to have originated with a University of Michigan law professor (Catharine MacKinnon), gained acceptance to the mainstream when the U.S. Supreme Court recognized it in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).  A bank fired a branch manager for absenteeism. She responded by filing a lawsuit under Title VII of the Civil Rights Act of 1964. It alleged that she had been the victim of sexual discrimination in the form of demands for sexual favors by her supervisor. The trial court found for the bank on the grounds that the plaintiff had been promoted time and again strictly on her own merit and had suffered no economic harm on account of the sexual activity if, indeed, it had occurred at all.

The Court of Appeals reversed on the grounds that the trial judge had an unduly narrow view of sexual harassment. The Supreme Court affirmed the Court of Appeals on the point about hostile environment on this basis: Title VII prohibits discrimination “against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. sec. 2000e-2(a) (1). Unwelcome sexual advances that create an offensive or hostile working environment violate Title VII without regard to whether anything is gained or lost economically. To be actionable, however, the sexual harassment must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment.

The conduct complained of in the Meritor Savings case went beyond the merely annoying, unwelcome, or offensive. It constituted a violation of Title VII, at least in theory, and a violation in fact if the plaintiff could prove what she pleaded. Likewise, conduct that violates laws against workplace discrimination on account of age, disability, and so on could, and often does, create a “hostile environment.” But true cases of actionable “hostile environment” are rare compared to all the cases that are labelled “hostile environment” but which would be more accurately described as personality clashes. The aforementioned case of the outspoken fan of candidate Trump and the anonymous author of the snotty note is a recent example of the latter. (For more on this subject, see the blog post of 04-26-14, titled Hostile Environment.)