Dive Brief:
- A former Walmart employee plausibly alleged he was subjected to a hostile work environment based on his sexual orientation, the 10th U.S. Circuit Court of Appeals ruled Monday, reversing a New Mexico district court’s finding (Sharpe-Miller v. Walmart, Inc.).
- The 10th Circuit determined the district court erred in two ways; first, by mistakenly excluding or discounting multiple relevant discriminatory acts, and second, by relying on an “incomplete statement of the law” when finding a hostile work environment claim can only succeed if the plaintiff encounters a “steady barrage” of bias, the court said.
- The U.S. Equal Employment Opportunity Commission filed a brief in support of the plaintiff’s appeal in August 2024, during the final months of the Biden administration. The agency has since backed away from cases involving gender identity and sexual orientation.
Dive Insight:
According to the 10th Circuit, the New Mexico district court improperly excluded comments it determined were not related to sexual orientation, such as jokes about the worker’s “cat walk,” a co-worker asking if he was “afraid to break a nail” and a co-worker referring to him as a “fairy.”
The appeals court noted a pejorative dictionary definition for “fairy” and the stereotype of gay men as effeminate.
“On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmovant,” the 10th Circuit wrote. “Here that means interpreting plausibly homophobic comments as homophobic.”
The district court also set aside several comments the plaintiff used as evidence because he did not identify a speaker. Whether this was because the court felt it undermined the plaintiff’s credibility or it viewed identification as a legal requirement, this was also an error, the 10th Circuit found. “Legally, identifying the declarant of each insult or slur is not necessary for it to contribute to a hostile work environment,” it said.
Likewise, a plaintiff needn’t show the comments were directed at him or the intent was to offend. “It is reasonable to infer that a gay man would suffer when his coworkers deride gay men generally or use gayness as an insult,” the court determined.
The appeals court also disagreed with the district court’s analysis and dismissal of “discrete acts,” like a demotion the plaintiff experienced, finding that they were indeed relevant to a hostile work environment claim.
Additionally, the appeals court found that the district court’s requirement that the plaintiff demonstrate a “steady barrage” of discriminatory comments was incorrect.
“Under our precedent, the ‘steady barrage’ formulation does not signal a uniform, frequency requirement or demand a ritualistic number-counting exercise,” the 10th Circuit said.
The plaintiff in question demonstrated “severe” conduct regardless, the appeals court found, noting several of the more intense slurs. And, “even regarding pervasiveness, the assessment of whether incidents are sufficient to constitute a hostile work environment is a ‘qualitative’ one,” the 10th Circuit said, citing an U.S. Equal Employment Opportunity Commission analysis.
While the court reversed the hostile work environment claim, it upheld several other district court findings, including granting summary judgment to Walmart on disparate-treatment, retaliation and constructive-discharge claims.
Walmart did not immediately respond to a request for comment.
It is often difficult for employers to know where the line is when it comes to hostile work environment claims. EEOC has explained such an environment is created when conduct is “severe or pervasive enough” that a reasonable person would consider it hostile. An employer also must know about the environment and be given an opportunity to address it, an attorney previously told HR Dive.
