Can a single discriminatory remark by an employee about a co-worker by itself create a hostile work environment under federal or state law? Should it? Can discriminatory actions occurring outside of the workplace be considered part of a hostile work environment? Should they be?    

These questions were raised once again in a West Virginia case, CSX Transportation Inc. v. Smith. Affirming a $2.1 million judgment in favor of a lesbian trainmaster for CSX Transportation Inc., the state’s highest court found the evidence sufficient to support a jury’s finding of sexual harassment and retaliation.  

The key piece of evidence was a graphic comment Angela Smith overheard one male co-worker make to another male co-worker regarding her sexual orientation. Although the dissenting judge contended that Smith’s case rested solely on that one comment, which he argued did not constitute the "significant accumulation of incidents" required by state law, that principle did not give the majority much pause.  

The majority instead—focusing on the "cumulative effect" of the offending co-worker’s misconduct—found further support for Smith’s hostile environment claim in acts that took place outside of the workplace. According to the court, though it was never proven, it was likely the offending co-worker placed menacing phone calls to Smith and visited her home. In addition, there was evidence of prior remarks about other female employees by the same co-worker.  

The dissent relied on U.S. Supreme Court precedent and decisions by the Seventh and Eighth circuits to argue that a single comment generally is not enough to find employer liability for workplace harassment. The dissent cited cases from the Fifth, Sixth, and Tenth circuits for the proposition that non-workplace acts cannot contribute to a hostile work environment.  

Other EEO developments over the past two weeks include:  

• The Seventh Circuit rules that the cat’s paw theory can be used to establish an individual supervisor’s liability for retaliation under the Civil Rights Act of 1866 (42 U.S.C.  § 1981), but it rejects a former Equistar Chemicals employee’s claim for lack of evidence of motive.      

• Upholding a jury verdict in favor of two doctors with a Department of Veterans Affairs hospital in Florida, the Eleventh Circuit recognizes the viability of retaliatory harassment claims under Title VII of the 1964 Civil Rights Act, joining 10 other circuits.      

• Ruling in favor of same-sex couples in Massachusetts, the First Circuit finds that the federal Defense of Marriage Act is unconstitutional because it impermissibly interferes with the rights of the states to establish their own marriage laws.