- A nurse who had several conflicts with her co-workers and who resigned shortly after filing a complaint with HR was unable to show that the conduct created a hostile work environment on the basis of race (Tatum v. DaVita Healthcare Partners, Inc., No. 18-15762 (9th Cir. Oct 30, 2019)).
- The nurse claimed that a co-worker started singing the USA for Africa song "We Are the World" after she tried to correct a co-worker's dosing procedures and also told an African American patient to "hang from a tree to keep dry" if it got too rainy during an upcoming vacation. Standing alone, said the district court, these allegations were not "physically threatening or otherwise so extreme as to sufficiently affect the conditions of employment and implicate Title VII."
- On appeal, the 9th U.S. Circuit Court of Appeals affirmed summary judgment in favor of the employer. The co-workers' conduct, said the 9th Circuit, "while offensive," generally consisted of "offhand comments" and did not rise to the level of actionable discrimination. Additionally, said the court, even if the nurse had been subjected to a hostile work environment, her claim would still fail because there was no evidence that the employer knew about the mistreatment and failed to take remedial action — especially because the nurse quit just as the employer was starting to investigate her complaint.
According to the U.S. Equal Employment Opportunity Commission (EEOC), "slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality." A hostile work environment is generally considered one that is "intimidating, hostile, or offensive to reasonable people." Illegal conduct can include slurs, epithets, name-calling, offensive jokes, or interference with someone's work performance.
One court recently held that a few incidents over the span of multiple years was insufficient to substantiate an employee's claims of hostile work environment, disparate treatment, retaliation and constructive discharge. But a different court stated that a plaintiff isn't required to show that a workplace is "hellish" to prove a hostile work environment claim.
Prevention is always better than remediation when it comes to allegations of harassment, retaliation or bias, experts say. But few if any workplaces are perfect, and attorneys recommend that complaints be investigated promptly and taken seriously by HR. Failing to investigate can encourage a culture of noncompliance, embolden wrongdoers and lead to lawsuits. A diner in Arkansas, for example, was recently sued by EEOC for allegedly ignoring complaints that two managers were harassing employees.