harassment

Title VII: Being a Jerk Is Not Discrimination

Robert C. Lockwood
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Title VII jerk harassment Alabama Employment Law
Title VII does not protect employees from bosses or co-workers who are jerks

Employees frequently think that they should be able to sue under Title VII of the Civil Rights Act of 1964 because their boss, or a co-worker, is mean to them.  I frequently hear the complaint:  “I’m being harassed, and that’s illegal!”  In the employment law context, however, there is nothing illegal about being a jerk.  In fact, there is nothing illegal about harassing employees — unless that harassment is bad-enough and based upon a protected characteristic like race, sex or age.  Being a jerk generally does not violate any  employment laws.

At the outset, let’s be clear.  Sexual harassment, racial harassment or harassment based upon any other protected characteristic will get you sued.  But, even that harassment must be so severe and pervasive that it alters an employee’s terms and conditions of employment.  There is abundant case law holding that Title VII is not a general civility code.  It is not designed to make sure that people “get along” in the workplace.  Instead, Title VII is supposed to prevent discrimination at work.  Sometimes, there’s a fine line between behavior that’s boorish and behavior that will violate the law.  Some obvious examples of conduct that will get you sued, however, are repeated use of the “N” word toward African-American employees, and touching a female employee in a sensitive location.

An employee must suffer an “adverse employment action” to possess a claim under Title VII.  Such an action must have a tangible adverse effect on the plaintiff’s employment.  As a result, giving discriminatory job assignments, in many cases, won’t be illegal.  Similarly, just being mean to an employee, even if based on a protected characteristic, does not violate Title VII.  For example, last year, the Eleventh Circuit affirmed dismissal of a Title VII action filed against the Post Master General.  See Coles v. Post Master General, 711 Fed. Ap’x 890 (11th Cir. 2017).  In that case, a postal employee claimed she was subjected to age and race discrimination because:  her vehicle was searched at work; an investigation was conducted into her work absences; and, she was assigned “culling belt work” (an unfavorable assignment).  The Eleventh Circuit found that treatment was not an “adverse employment action” under Title VII.

The foregoing observations on the state of the law are not intended to encourage employers to be jerks to their employees.  Indeed, positive morale is a vital component of any workplace.  Moreover, sometimes a court will allow an employee to sue for “constructive discharge.”  A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that an employee is compelled to resign.  In short, if an employer is too much of a jerk, and the employer’s conduct is aimed at a protected characteristic, an employee may be able to sue — even if they resign.

 

Alabama Employers Need Effective Anti-Harassment Policies

Robert C. Lockwood
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Many types of harassment are prohibited by Title VII. An effective policy prohibiting harassment can help employers avoid liability.

Almost 20 years ago, the United States Supreme Court provided employers with an important defense to harassment claims under Title VII of the Civil Rights Act of 1964.  Under that defense, even if impermissible conduct occurs in the workplace, an employer can avoid liability by maintaining an effective policy against harassment.  Even though two decades have passed, I still occasionally encounter an employer who has not adopted an anti-harassment policy.  A recent decision from a federal judge in Alabama demonstrates the wisdom of adopting such a policy.

In Garrett v. Tyco Fire Products, LP, No. 2:16-cv-00372-SGC, 2018 WL 1319060 (N.D. Ala. Mar. 14, 2018), Tyco was sued by six African-American employees for racial harassment.  Magistrate Judge Staci Cornelius conducted an extensive review of each employee’s claims, and found that three of them potentially were exposed to the types of severe and pervasive conduct that that are impermissible under Title VII, as well as another law, 42 U.S.C. § 1981.  They each heard, or were called, “boy” and the “n” word “constantly,” saw racial grafitti in Tyco’s bathroom and saw lightning bolts and other Nazi paraphernalia.

Nevertheless, Judge Cornelius found that Tyco was not liable, because of its effective anti-harassment policy.  Importantly, employers cannot just slap a policy on the books and expect to avoid liability.  Instead, the policy needs to be comprehensive, well-known to employees, vigorously enforced, and provide alternate avenues of complaint (so that an employee is not forced to complain to a harassing supervisor).  Tyco’s policy was effective because it did those things, and it was disseminated to all employees through orientation, training, publication in the employee handbook, and postings throughout Tyco’s facilities.  Despite that well-disseminated policy, none of the employees made a harassment complaint to Tyco.  And, because they failed to complain, their harassment claims were barred.

Judge Cornelius’s decision demonstrates that Alabama employers will benefit from adopting effective, well-disseminated anti-harassment policies.  Importantly, if an employee makes a complaint under such a policy, the employer is further required to diligently investigate any complaint and take “prompt remedial action” that is reasonably likely to prevent the misconduct from recurring.