Hostile Work Environment
SUPERVISORS’ AWARENESS OF HOSTILE ENVIRONMENT NOT CONSIDER PARTICIPATION IN IT
In Allen v. Potter, 152 Fed.Appx. 379 (CA 5 2005), the Fifth Circuit Court of Appeals refused to attribute awareness of and participation in a hostile work environment to management despite supervisors who walked by, observed the events, failed to stop them, and laughed at what was happening.
Catherine Allen filed an employment discrimination complaint against the United States Postal Service (USPS) alleging hostile work environment race discrimination claims. She worked for the USPS in New Orleans, Louisiana. In her complaint, she alleged that the USPS required her and other co-workers to work in a metal enclosure, “a cage,” for one and one half hours. Allen further alleged that only darker skinned African American employees were required to work in the cage and that lighter skinned African American employees as well as white employees were not required to work in the cage. While they worked in the cage, co-workers would throw peanuts and bananas at them. Someone posted a sign near the cage that read, “Do not feed the animals.” Allen claims that at least two supervisors were aware of what went on and laughed at her while she worked in the cage.
Two months subsequent to filing her original complaint, Allen amended her complaint to add sixteen additional plaintiffs who were co-workers and were required to work in the cage but from one to four days instead of just a few hours. USPS filed a motion to dismiss for lack of subject matter jurisdiction, a motion to dismiss for failure to state a claim, and, in the alternative, a motion for summary judgment as to the disparate treatment and hostile work environment claims.
The district court granted USPS’s motions to dismiss as to Allen’s claims of “intra-racial color discrimination” and disparate treatment. The district court indicated that Allen did properly state a claim for hostile work environment and that the sixteen other employees could piggyback their claims to Allen’s timely filed complaint; however, on the basis that management promptly responded to the complaints of Allen and others, the lower court granted summary judgment to USPS on Allen’s claim of hostile work environment.
The Fifth Circuit Court of Appeals began its analysis with an overview of hostile work environment race discrimination elements: “Appellants must prove: (1) they belong to a protected group; (2) they were subject to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.” The appeals court went on to state that “for harassment on the basis of race to affect a term, condition, or privilege of employment … it must be ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” citing Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002).¬Ý
The following factors determine whether a workplace constitutes a hostile work environment: (1) the frequency of the discriminatory conduct; (2) its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and (3) whether it unreasonably interferes with an employee’s work performance.
The plaintiffs’ allegations of hostile work environment included: they were required to work in the cage between one and four days; coworkers made offensive comments such as “Look at the monkeys” and “Don’t feed the Monkeys”; someone posted signs that read “Don’t feed the animals”; peanuts were thrown into the cage all four days. Based on these allegations, the appeals court determined that the plaintiffs had raised a genuine issue of material fact concerning the severity or pervasiveness of the work experience.¬Ý
The appeals court then focused on the fifth element of a hostile work environment claim: (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), Plaintiffs alleged that they didn’t have to show this element as their supervisors were aware of what was happening and participating in the harassment. The appeals court responded: ” Though they allege supervisors walked by, smiled or laughed, Appellants do not allege that their supervisors made offensive comments, threw food, or posted signs. Appellants failed to raise a fact issue as to whether their supervisors created a hostile work environment; accordingly, they were required to show that the supervisors had notice and failed to take prompt remedial action.
The court continued in its explanation, “None of the appellants alleged that he or she complained to anyone about the experience. On the fourth day, an employee who is not a party complained to the District Manager and he immediately had the cage dismantled and apologized to the employees. Further, in their reply brief, Appellants admit the signs were removed by the second day and speculate that the signs were removed by a supervisor who admonished employees for making offensive comments. Therefore, we conclude that Appellants cannot show that management had notice and failed to respond promptly.”
Surprisingly, the appeals court did not attribute knowledge of or participation in the hostile work environment to the supervisors when they walked by and witnessed what was happening. Perhaps the court was looking for an actual complaint to be made to the supervisors before attributing knowledge to them. Nevertheless, the case underscores the necessity of management knowledge of discriminatory acts by co-workers in all types of discrimination cases. A common employer defense is to deny any knowledge of discriminatory harassment against a plaintiff. The importance of obtaining and establishing such awareness is paramount in discrimination cases.