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By Patrick Dorrian
Jan. 6 — Workplace harassment claims based on a single incident between employees appear to be gaining traction with U.S. courts. While surely welcome news for employees, prudent employers still can head off such claims—which can be costly—or defeat them when they arise, employment lawyers and others told Bloomberg BNA in a series of interviews.
Several recent cases, most notably the U.S. Court of Appeals for the Fourth Circuit's May decision in Boyer-Liberto v. Fontainebleau Corp., have made clear that an employee subjected to one offensive remark or act may recover for unlawful harassment under federal law if the comment or behavior is “extremely serious” or “severe” enough.
Wider recognition of single incident harassment claims by the courts has made it more difficult for employers to have such cases quickly dismissed, at least in the Fourth Circuit, according to employee-rights attorney Brian Murphy of Stephenson & Murphy. He said harassment based on a lone incident is a “common fact scenario” experienced by employees.
The issue is “a real concern for employers,” Sindy Warren of Cleveland-based Warren & Associates told Bloomberg BNA Jan. 5. The more frequently workplace harassment claims are raised, and the longer they remain pending, the greater the potential harm to a company's business, she said.
In addition to litigation costs, she said, such claims can have “a huge impact on the morale” of an employer's entire workforce, hurt employee productivity, and cause lasting damage to a company's reputation.
“Employers are being foolish if they downplay their obligation to provide an harassment-free workplace,” Rae Vann of management-side firm NT Lakis in Washington told Bloomberg BNA Jan. 4.
In Boyer-Liberto, the full Fourth Circuit overruled a lower court—and circuit precedent—in finding that a black hotel employee fired after she complained that a white colleague called her a “porch monkey” raised a triable claim of racial harassment under federal law (786 F.3d 264, 126 FEP Cases 1637 (4th Cir. 2015); 89 DLR AA-1, 5/8/15).
The 12-3 decision “helped clarify what constitutes harassment in real world situations,” Murphy told Bloomberg BNA Dec. 31.
Other federal appeals courts have also recognized potential employer liability for workplace harassment stemming from one incident, and the Equal Employment Opportunity Commission has long held the view that such isolated instances rise to the level of actionable harassment if “unusually severe.”
But single incident and other harassment cases ultimately “turn on the facts,” Lisa Banks of Washington-based plaintiffs' firm Katz, Marshall & Banks LLP told Bloomberg BNA Jan. 4. As a result, “there's no bright-line rule” as to which specific comments or acts by themselves amount to workplace harassment, she said.
Several of the lawyers interviewed by Bloomberg BNA indicated that the type of harassment alleged—i.e., whether based on race, sex or another protected trait, and whether verbal or physical—has led to differing results.
For example, to build a sexual harassment claim based on a single incident, courts historically have required evidence of a physical assault or touching, Banks said. Evidence of a vulgar comment or joke alone usually isn't going to be enough, she said.
On the other hand, one use of the N-word or similar language or the one-time display of a noose or other symbol of racism in the workplace has been found sufficient in some cases to support a claim of racial harassment, Banks said. But there have been other cases where the same sort of evidence was deemed insufficient to show racial harassment, she added.
Vann, who is general counsel for the Equal Employment Advisory Council, a nonprofit employer association, said such a “vague, ambiguous” standard is “problematic from a compliance standpoint.”
A standard that changes from one situation to another can leave employers confused about their obligations under the law, Vann said.
Moreover, many words arguably may be considered “extremely serious” or “severe” depending to whom they're directed, Vann added. It may be hard for some to understand why single utterances of terms that denigrate one class are actionable, while lone uses of words demeaning to other classes aren't, she said.
The use of such words should never be tolerated, she said, but a worker subjected to any of them one time hasn't experienced harassment under Title VII of the 1964 Civil Rights Act and similar laws. This sort of abhorrent behavior instead might be better handled through anti-bullying policies, Vann suggested.
In the same vein, management attorney Marc R. Engel said focusing on the class affected by a term isn't “the way to draw the line.” Most protected groups, including workers with disabilities and the LGBT community, have specific words that they find especially offensive, Engel, who is with Lerch, Early & Brewer in Bethesda, Md., told Bloomberg BNA Jan. 4.
Vann also questioned whether the Boyer-Liberto majority mistakenly construed U.S. Supreme Court precedent in holding that a single offensive term can support employer liability under Title VII. Echoing an argument made by the dissent in that case, she said a rule that one comment or act is enough gives “short shrift” to the “totality of the circumstances” test the Supreme Court established in Harris v. Forklift Systems, Inc., 510 U.S. 17, 63 FEP Cases 225 (1993), for assessing workplace harassment claims.
The totality-of-the-circumstances test requires courts to look at not just the severity of alleged harassment, but also its frequency and whether it was physically threatening or humiliating, she said. It also distinguishes “mere offensive utterances,” which don't typically give rise to a claim.
It's hard to imagine what “mere offensive utterance” means if it doesn't include words like “bitch” and “whore,” which are no doubt “extremely serious” to most women, Vann said.
A rule that single workplace comments can support employer liability, which will likely spur more claims, also conflicts with “very clear” statements by the Supreme Court that “litigation is not one of the principle aims of Title VII,” Vann added.
She said the justices have instead indicated that the real purpose of the statute and other federal anti-discrimination laws is to promote employer efforts to prevent harassment from ever occurring in the first place and to promptly remedy it if it does occur.
And the Supreme Court outlined how employers can do just that—and thereby establish a defense to liability for workplace harassment—in Faragher v. City of Boca Raton, 524 U.S. 775, 77 FEP Cases 14 (1998), and Burlington Industries Inc. v. Ellerth, 524 U.S. 742, 77 FEP Cases 1 (1998), Vann said.
Under Faragher/Ellerth, to defeat a claim where a supervisor is the harasser—which was the situation in Boyer-Liberto—an employer must show both that it exercised reasonable care to prevent or end sexual harassment and that the employee failed to take advantage of the remedial measures offered or to otherwise avoid harm.
Permitting single incident claims “is a little at odds with that paradigm,” Engel said.
But Murphy said the issue of whether workplace behavior alone is severe enough to constitute unlawful harassment doesn't determine whether an employer will be found liable for damages.
“Boyer-Liberto doesn't cut back on” an employer's Faragher/Ellerth defenses “one bit,” he said.
Rather, employees suing based on a single incident—like other harassment plaintiffs—still need to show that the complained-of behavior changed a term or condition of their employment, Banks said. She said that's much harder to do when a claim is based on a single incident of severe harassment rather than a course of pervasive harassment.
Vann agreed. Most employees in single incident cases will have a hard time showing a connection between the alleged harassment and an impact on their job performance or employment conditions, she said.
But that doesn't mean the increased recognition of single incident harassment claims hasn't had consequences for employers and employees.
Murphy, whose practice is based in Greenville, S.C., told Bloomberg BNA that Boyer-Liberto and other cases have caused a shift in attitude among employment counsel and the courts, at least in the Fourth Circuit, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia.
Single incident and other harassment claims are now much more likely to get to a jury, he said. “Twenty years ago, the attitude” among management lawyers defending harassment claims was that the Fourth Circuit—which has traditionally been viewed as “employer friendly”—would be inclined to dispose of an employee's complaint on summary judgment, with a judge deciding whether the facts alleged truly described prohibited harassment, he said.
“Now there's more respect” from judges and the defense bar toward harassment claims, he said, and employers often make an “early push” to resolve such cases amicably.
That's with good reason, according to Warren, a former management attorney who now provides employment law compliance consulting services. That summary judgment is getting harder for employers to win in harassment cases when the issue is whether the alleged behavior rises to the level where it's actionable—severe or pervasive enough—under Title VII and other laws is “a very real trend,” she said.
She said employers must bear a certain level of litigation costs whenever they're sued for harassment. But when a claim survives past summary judgment, she said, “the legal bills sky-rocket,” especially if the claim proceeds to trial, whether the employee prevails or not.
In addition, because it's difficult for other workers not to get caught up in gossiping about harassment allegations, such claims can be a major workplace distraction, Warren warned.
She said group counseling sometimes is needed “just to get a workplace back on track.”
Boyer-Liberto and similar single incident harassment cases should signal to employers “in a pretty loud and emphatic way that you better get your house in order,” and that courts are no longer going to tolerate this sort of behavior in the workplace, Engel said.
And if employers need any more incentive to crack down on harassing behavior, workplace harassment also has received increased attention from the EEOC, first when the commission identified preventing harassment as a top enforcement priority in its 2012 Strategic Enforcement Plan (243 DLR A-1, 12/18/12) and more recently when it announced the formation of a Select Task Force on Workplace Harassment Jan. 15, 2015.
The task force has held three public meetings to date (234 DLR C-1, 12/7/15), and Banks, Vann and Warren have all assisted the task force in some capacity.
To avoid employee claims—and perhaps unwanted attention from the EEOC—employers need to implement or beef up existing harassment prevention plans as well as training and investigation procedures, Warren said.
“Begin with a strong zero-tolerance policy statement” prohibiting workplace harassment and retaliation, which is backed up by regular and meaningful training, Vann said. She said an employer's policy and training should provide specific examples of prohibited behavior, and it can go beyond what's required by the law and state, that workplace bullying also won't be tolerated.
Warren, Vann and Engel all stressed that live anti-harassment training is much more effective than web-based training.
“And make the training interactive,” Warren added, because allowing employee feedback during training sessions “creates a more-lasting impact.”
Also be sure to “tie your diversity and inclusiveness policy into your training,” Engel advised.
Warren said it's vital to provide specially tailored training to managers. “You'd be surprised by how many” upper-level employees don't understand what's prohibited, she said. In her training and investigatory work, Warren said she finds a lot of individuals who minimize employee harassment complaints and think the complaining employee is being too sensitive or politically correct.
Not properly training managers “creates a blindspot for employers,” Engel warned.
Employers also should make their complaint procedures and the consequences of violating their anti-harassment policy well-known, Vann said. And such policies must have executive force and backing, she stressed.
Engel said being careful about who a company hires and promotes also can go a long way toward avoiding or reducing workplace harassment claims. Some employers “make the conscious decision to hire based on a set of characteristics,” such as a job candidate's emotional intelligence, that are more likely to result in an harassment-free work environment.
“Don't just hire someone” quickly because you need to fill a position as soon as possible, he advised. Instead, take the time to thoroughly check references and otherwise vet job applicants.
And don't make promotion decisions based solely on how someone performed in a subordinate role, he said. Success in an underlying position doesn't necessarily translate to success in a supervisory role, where employee-relation and similar skills are so important, Engel said.
Different employers have different reactions to reports of harassment, Murphy said. “If you're only trying to defeat the claim as opposed to doing the right thing, that's when you end up in court,” he warned.
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