Friday, April 15, 2016

Courts Continue to Expand What Single Events May Constitute Hostile Work Environment

We have written two blogs (here and here) over the past several years on the subject of single-incident acts constituting the basis for a hostile work environment (HWE) claim. 
A host of courts have held in recent years that a single racial slur may well be sufficient to plead a HWE claim.  See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013); Smith v. D.C. Office of Human Rights, 77 A.3d 980 (D.C. 2013) (the “b-word”).

A series of articles, set forth below, contain citations to scores of other appellate and trial court decisions that have addressed the issue.  See Eugene Volokh, What Speech Does “Hostile Work Environment” Harassment Law Restrict?, 85 Geo. L.J. 627 (1997) (available at:; Karen M. Buesing, Shayla Waldon, Workplace Harassment: When Will a Court Say That Your Employees Have Had Enough?, ABA Section of Labor and Employment Law, Ninth Annual Conference (Nov. 4-7, 2015) (available at:; Debra D. Burke, Workplace Harassment: A Proposal for a Bright Line Test Consistent With the First Amendment (Available Online at:

Two recent decisions from Maryland and the District of Columbia underscore the dramatic expansion of HWE claims in the wake of the Fourth-Circuit’s Boyer-Liberto decision and the D.C. Circuit’s decision in Ayissi-Etoh.  In the wake of Boyer-Liberto, Judge James K. Bredar, in Tiffany Jones v. Family Health Ctr. of Balt., Inc., No. JKB-14-762, 2015 U.S. Dist. LEXIS 130818 (D. Md. Sept. 29, 2015) denied summary judgment to the defense, stating that Boyer-Liberto had “changed the landscape” such that a single instance of physical touching was held to be sufficient to overcome a Rule 56 summary judgment motion.  Judge Bredar relied upon the following facts to deny summary judgment:
[Plaintiff] stepped outside [the room]...[o]n her way back, as she walked through the lunchroom and toward a door that opened into the clinic’s waiting room, Plaintiff felt [her supervisor] behind her: he “got up on [her] so close, [she] felt his private parts on…[her] buttocks.”  Plaintiff also felt [supervisor’s] hand on her waist…Plaintiff reported the incident to [another supervisor] who allowed her to “go home” and “get [her]self together.
Judge Emmet G. Sullivan of the federal district court in the District of Columbia, in Kruger v. Cogent Commc’ns, Inc., No. 14-1744, 2016 U.S. Dist. LEXIS 41822, (D.D.C. March 30, 2016) found that the CEO’s alleged reference to Mr. Kruger as a “Nazi” may be severe enough in itself to state a hostile work environment claim.  Based on that finding, relying upon Ayissi-Etoh, the Court denied the defense’s motion to dismiss.  Judge Sullivan further found that an alleged intentional “public display of hostility towards Mr. Kruger” was a factor to consider in determining whether Mr. Kruger had pled a plausible HWE claim.  The public display of hostility was the allegation that the CEO acknowledged other employees with “at least an appropriately cordial greeting” but would “consistently ignore Mr. Kruger and refused to engage in any type of normal workplace pleasantry.”  Judge Sullivan found that the allegation that Mr. Kruger’s “supervisor refused to engage in work place pleasantries added further strength to his hostile work environment claims.”  Possibly, in contrast, see Satterwhite v. City of Houston, 602 Fed. Appx. 585 (5th Cir. 2015) (a single reference to an employee as “Hitler” was found to be insufficient.). 

Based on the continuing expansion of the circumstances that may be sufficient to plead an HWE claim, employers would be wise to have an aggressive zero-tolerance policy; well communicated internal complaint mechanisms; a requirement that co-workers report any inappropriate conduct or comments observed by them; prompt investigations of any such reports; training on a periodic basis to remind employees of their policies in this regard; and discipline, where appropriate, that sends a message to all concerned that the company’s policies are being aggressively enforced and not are merely window dressing.

Please be sure to visit our website at