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A Hostile Work Environment: What is “Pervasive”?

October 26, 2020

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By: Lily Crespo Esq.

Q: What actions can constitute a pervasively hostile work environment?

A: They are not isolated or fleeting.

Case on point: In the 10th circuit, a Wyoming Highway Patrol trooper alleged harassment in the form of rumors of sexual promiscuity. The court found the behavior of her co-workers to be severe and pervasive. She ultimately succeeded in proving the foundation for her hostile work environment claim.

Background: In this case, the female trooper performed well and won awards – but was the subject of widespread rumors about her supposed sexual promiscuity with colleagues and supervisors and using her sex to gain advantages, like a new patrol car and promotions. Her male co-workers ostracized her and mocked her. They also called her the “division bicycle”.

After an altercation in which she called a male co-worker an “a**hole,” she was demoted. She then sued, claiming a hostile environment existed.

What creates a hostile environment? To establish a hostile work environment claim, a plaintiff must show harassing conduct so severe and pervasive that “the workplace is permeated with discriminatory intimidation, ridicule, and insult.” The federal district court found no hostile environment existed, BUT on appeal, the U.S. Court of Appeals for the Tenth Circuit reversed the district court’s decision. The Tenth Circuit found the alleged harassment was sufficiently severe and pervasive to support the hostile environment claim – the rumors were persistent, repeated, and circulated by multiple colleagues. Combined with other non-sex-based but negative conduct, this could be enough for a jury to find a violation of Title VII’s prohibitions on harassment.

From the opinion, citing a U.S. Supreme Court ruling:

The Supreme Court in National Railroad Passenger Corp. v. Morgan wrote that “[a] hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’”  536 U.S. 101, 117 (2002) (quoting 42 U.S.C. § 2000e-5(e)(1)).

Takeaways and Best Practice Tips: Some employers may feel embattled by cases involving rumors and bullying behaviors in the workplace. (Especially cases involving personal social media activity). You may be thinking– “How can we stop it?” “This is a personal issue”–But as this case illustrates, ignoring these behaviors can put employers at risk of litigation. Addressing this type of conduct can be challenging but there are some steps you can take reduce legal risk.

  1. Enact, maintain, and provide notice to employees of an effective anti-harassment policy.
  2. Pay special attention to complaints about rumors.
  3. Pay attention to outbursts or teasing – particularly those involving protected characteristics like race or sex. Even if no one complains!
  1. There will be times when you can choose to believe one person over another (although it would be wise to consult your employment counsel if you’re dealing with such a situation).
  1. If you can identify particular troublemakers, address them one-on-one. Set standards and expectations for their conduct. Discipline or counsel, as appropriate.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.

Kaleva Law

At Kaleva Law Office you receive the experienced, practical advice of a large firm with the responsive, efficient, top-notch support of a small firm. We take care of the legal questions so you can focus on education.

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