I often receive phone calls from people living and working in St. Louis County who ask me if they have a claim for work discrimination because of a hostile work environment. Sometimes the source of their discrimination is a boss while other times it is a coworker. Occasionally the cause of the hostile work environment is a customer making lewd comments or otherwise harassing the employee.
A common misconception found among those who make allegations of discriminatory behavior or hostile work environment is thinking that a few isolated incidents is enough for a claim. In their eyes they feel that they have suffered at work and that that is enough for a hostile work environment because to them it feels hostile. Employees will sometimes genuinely feel that someone at their work, whether an unfair boss with an attitude, or a coworker who told a distasteful joke in mixed company are intentionally out to get them.
In order to separate the wheat from the chaff, if helps to understand how a St. Louis County court will analyze your claim.
Employment Discrimination - The Basics
The anti-discrimination laws at both the Federal and State levels protect employees, former employees or those seeking employment from receiving unfair treatment by the employer. But what does that mean, "unfair treatment"?
Unfair Treatment in Employment
Any claim for discrimination brought in St. Louis County Circuit Court must involve allegations of unfair treatment. In order to file a lawsuit against an employer on the basis of discrimination, you must have been treated worse than you otherwise would have been. But what exactly does "unfair treatment" mean?
Compensation, Terms, Conditions or Privileges of Employment
These are broad terms covering the treatment of employees in the workplace. For example, it includes decisions affecting hiring, promotion, discharge, pay, fringe benefits, etc. However, it is not enough that you were passed over for a promotion, or denied the opportunity for Over Time. You have to connect your unfair treatment, your receiving less pay than your coworkers, with a difference between you and your better paid coworkers.
This difference of yours must also be the main basis for being treating differently from your better treated coworkers. While not any characteristic of an employee will give rise to illegal discrimination, the Equal Employment Opportunity laws outline specific classes of people based on the characteristics of the classes. These classes that are protected from being used as the basis for an adverse employment decision.
The Federal Equal Employment Opportunity laws (Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, etc.) and the Missouri Human Rights Act, prohibit an employee from treating an applicant or employee unfairly on the basis of a protected class. These laws further identify the various protected classes. Additionally, these laws have been further defined by judicial decisions of cases over the years, i.e. caselaw.
These laws prohibit employers from making adverse employment decisions on the basis of an applicant's or employee's: Race, Color, Religion, National Origin, Sex, Ancestry, Age or Disability. Furthermore, since August of 2017, the protected class of the employee must have been the motivating factor behind the employer's adverse decision. What does this mean?
Motivating Factor Standard
In order for your discrimination lawsuit to be successful, you will need to prove to a jury that your race, sex, religion, etc., was the main reason behind the unfair treatment you received. This means, for example, that simply because your sex was one of the reasons your boss chose to fire you it will not be enough to satisfy the legal standard, unless you can prove that you would not have been treated differently if not for your race.
As I recently wrote in explaining Justice Gorsuch's analysis of the "motivating factor" concept in Bostock v. Clayton County, Georgia, et al,
As long as sex is a “but for” cause of the adverse employment decision, then liability may apply to the employer. Simply stating additional or alternative reasons for the decision does not undo the fact that but for the employee's sex, they would not have been fired.
On the other hand, if your employer would have treated you differently regardless of your sex, then you will not be successful in a discrimination claim.
Now that you know what qualifies as employment discrimination prohibited by the Missouri Human Rights Act, you next will need to understand what qualifies as a Hostile Work Environment in order to bring a successful lawsuit in St. Louis County.
Hostile Work Environment Claims
On July 21, 2020, the Eastern District for the Missouri Court of Appeals handed down its decision in M.W. v. Six Flags St. Louis, L.L.C. In her opinion for the Court, Judge Robin Ransom cogently explains the basis for prevailing on a claim of discrimination due to a hostile work environment. In order for a plaintiff to succeed, evidence needs to be presented that shows:
(1) she is a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) her gender was a [motivating] factor in the harassment; and (4) the harassment affected a term, condition, or privilege of employment.
In M.W. v. Six Flags of St. Louis, L.L.C., the plaintiff argued that she was subjected to sexual harassment when two of her male coworkers entered a room where M.W. and another female coworker were working alone. The two male coworkers locked the door behind them and then, upon making the observation that there were two boys and two girls, said, "let's get it on." The two male coworkers then pulled down their pants while leaving their underwear on. Their advance rebuffed by M.W., the males replaced their pants and proceeded to grab M.W. by the arms and legs laughing.
The following day, one of the male coworkers forced his phone into M.W.'s face showing her a video he took the night before on one of the rides of the other female coworker performing oral sex on him. M.W. reported the incident to her supervisor and after an investigation by the Human Resources (HR) department, she claims that they Six Flags took adverse action against her by suggesting she transfer to a different job in the park. Additionanlly, the female HR investigator told plaintiff that "boys will be boys" and that this type of behavior is going to happen in work places.
When Harassment Creates a Hostile Work Environment
The Court describes the standard for assessing whether a Plaintiff has proven that harassing conduct has affected a term, condition or privilege of their employment:
"Sexual harassment affects a term, condition, or privilege of employment when it creates an intimidating, hostile, or offensive work environment or results in a tangible adverse employment action. The standard for proving this fourth element is demanding. The harassing conduct must be “so intimidating, offensive, or hostile that it poisoned the work environment and that the workplace was permeated with discriminatory intimidation, ridicule, and insult,” both viewed subjectively by the plaintiff and viewed objectively by a reasonable person." (internal citations omitted)
In describing whether a reasonable person reviewing the evidence would agree that it was excessive enough to become abusive, the Court noted that under legal precedence (i.e. law as established by prior judicial decisions) for Hostile Work Environment claims under the Missouri Human Rights Act a few instances of bad behavior "objectively does not rise to the level of actionable harassment as a matter of law. "
Claim Alleging Supervisor Misconduct
In cases where an employee is being harassed by a supervisor, and the harassment is based on a protected trait of the employee's, there is less that is required of to determine whether they have a viable claim of discrimination due to a hostile work environment.
Under the legal theory of Respondeat Superior, agency principles apply to an employer/employee relationship. Where the employee acting as the agent of the employer is a supervisor, then the employer can be held vicariously liable for the supervisor's discriminatory behavior so long as the supervisor is acting within the scope of his employment.
It is further required that a discernible employment action resulted from the supervisory harassment which affected a term, condition or privilege of the employee's employment.
“If the harassed employee suffers a tangible employment action resulting from supervisory harassment, the 'tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer,' and the employer is liable for the discriminatory conduct.” Diaz.
Examples of a “tangible employment action” could include, being fired for not going on a date with the supervisor, to being demoted by a supervisor with racist tendencies, to being passed over for a promotion, as well as countless other actions.
If you did not suffer a “tangible employment action”, then you may still have a case if you have been subjected to a hostile work environment. The employer can still be found liable for the actions of its supervisor, if it knew or should have known of the discrimination and failed to take prompt remedial action designed to stop the offensive behavior.
If your employer has an anti-discrimination policy, then you may only have a claim if you can take advantage of the policy by timely reporting the harassing behavior of your supervisor. Sometimes it is unreasonable for a person to report the offensive behavior due to the employer's reporting polices or reasonable fear of retaliation from the supervisor. However, under most situations you are best advised to following the reporting policies in your employer's anti-discrimination policy.
Claim Alleging Coworker Misconduct
If you are being targeted by a coworker and experiencing a hostile work environment as a result, then aside from the initial four elements needed to prove a hostile work environment discrimination claim you will also need to show:
5) That the employer knew or should have known of the conduct; and 6) That the employer failed to take proper remedial action.
An employer is liable for a hostile work environment claim where the employee has reported to their employer offensive, harassing behavior of a coworker and the employer fails to take proper remedial action.
Once again it is best practice to report to your employer any discrimination or harassment which may be directed at you by a coworker. Even if an anti-discrimination policy is not in place, an employer who has notice of the offending coworker is responsible for taking quick action to prevent any further violations of the Missouri Human Rights Act.
Claim Alleging Third Party Misconduct
Other than supervisors and coworkers being the source of one's harassment at work, sometimes employees are targeted by a third party. This may mean a vendor or even a customer--someone who is not under the control of the employer like an employee.
In its 2015 opinion in Diaz v. Autozoners, LLC, the Western District of the Missouri Court of Appeals sustained the trial court's judgment in favor of Diaz in her discrimination due to hostile work environment involving a third party. Diaz, as an employee of an Autozone store worked with customers on a regular basis. Two such individuals were “commercial sales customers”. In their roles they purchased items from Autozone for their own companies and therefore made large purchases on a regular basis.
These two individuals began groping Diaz, a female employee of Autozone, as well as making lewd and sexually explicit comments to her and about her body. Diaz made several complaints about this offensive behavior to her supervisors over the preceding months. Her supervisors not only failed to address the customers in order to check their behavior, but rather they simply told Diaz to "suck it up" and "do your job."
Diaz eventually reported the violations the corporate HR representative,though it required multiple attempts for her to lodge her complaints. She finally was allowed to do so only to once again be let down. As a result, Diaz suffered from the continued harassment and physical abuse of the customers.
In analyzing third party harassment claims in the workplace, the Court in Diaz clarified the legal theory behind proving such a claim. The employer can be found liable to a third-party offender under a theory of negligence. (This also applies to a coworker, or non-supervisory employee, being the source of the discriminatory behavior)
If an employer is negligent in permitting a hostile work environment to exist and fails to promptly remedy the situation, then an “employer…may be liable at most for its own negligence in allowing the conduct of its customers to turn its workplace into a hostile work environment...." Freeman v. Dal-Tile Corp., 750 F.3d 413, 426 (4th Cir.2014) (Niemeyer, J., concurring in part and dissenting in part).
What this means is that if the employer knew or should have known of the offensive behavior of the customer, then the employer is charged with the duty to take swift and effective action to correct the situation and make sure that it does not happen again. A failure to act promptly and properly once the employer knows or should know determines liability.
In Diaz, the employer knew of the harassing conduct of two of its “commercial sales customers”. Autozone knew of the behavior due to the numerous complaints lodged by Diaz utilizing the employer's anti-discrimination policy. Autozone also had notice due to one of Diaz's supervisors actually witnessing the offensive behavior and not stopping it. Autozone then failed to protect Diaz from further suffering the effects of a hostile work environment.
This example further highlights the importance of following your employer's anti-discrimination policies, which are usually contained within the employer's Employee Handbook. Diaz's claim was stronger for her having made numerous complaints pursuant to the anti-discrimination policy of Autozone.
If you believe that you are the victim of a hostile work environment, contact Anthony Bretz today to see if you have a claim. As with all employment discrimination claims, one for hostile work environment has a short window during which you can keep your claim alive by filing a Charge of Discrimination with the Missouri Human Rights Commission and/or the Equal Employment Opportunity Commission. Don't wait, contact us today before it's too late.