Dive Brief:
- A supervisor’s whispered comments to a Merck biotechnician about the tone of his voice did not constitute actionable harassment, according to a Sept. 8 decision of the U.S. District Court for the Eastern District of Pennsylvania.
- The plaintiff in Nyamu v. Merck & Co. filed a grievance against his supervisor. The complaint followed a meeting in which the supervisor — upon learning that he forgot to give the plaintiff a work schedule — allegedly whispered into the employee’s ear that he was unsure how he forgot the plaintiff “because I use your voice to know where you are standing … You have a voice that is very specific to me.”
- The plaintiff claimed that the whispered remarks constituted both race- and sex-based harassment because he speaks with a “heavy African accent” and the act of whispering could be construed as sexual. The court disagreed on both counts and granted summary judgment to Merck.
Dive Insight:
The plaintiff had attempted to link his complaint about the manager’s conduct to a decision by Merck to move him from one department to another. He claimed that his new department offered him comparatively less training than his old post and did not allow him to work overtime, whereas his previous department did.
According to the court, however, the transfer was due to company policy requiring biotechnicians to adhere to workplace standards regarding maintenance of sterile environments. Merck required employees working in such environments to submit to regular testing to ensure they did not contaminate the area; those who failed six such tests in one year would be disqualified from working in the department for a year and retrained.
The plaintiff had failed six tests shortly after the incident occurred, per court documents, and Merck said this led to his exclusion from the sterile site. But he alleged that the decision was in retaliation for his complaint about the manager’s allegedly discriminatory conduct.
Harassment is considered actionable under Title VII of the 1964 Civil Rights Act and other federal workplace civil rights laws if it is so severe or frequent that a reasonable person would find the situation to be abusive, according to U.S. Equal Employment Opportunity Commission guidance.
In its analysis, the court determined that the manager’s comment that the plaintiff’s voice was “distinctive” was not inherently derogatory, and a reasonable person would not believe that the behavior violated Title VII. Similarly, the court found that whispering in the plaintiff’s ear in the specific context and on one singular occasion could not be construed to be related to sex, even if it invaded his personal space and caused some degree of discomfort.
Similar cases involving one-off statements have tilted in favor of employers, including a decision last month involving a Michigan car dealership. The plaintiff in that case claimed that a manager’s one-time use of an ethnic slur to refer to one of the plaintiff’s co-workers constituted a hostile work environment, but a federal district court disagreed.
