It Takes Severe or Pervasive Behavior to Create a Hostile Work Environment

By Eric B. Meyer

All of us have heard the words “hostile work environment” bandied about to the point where the most minor slight in the office can supposedly create a hostile work environment.

Well, as a matter of law, a hostile work environment must arise from behavior that is based on a protected class (such as gender). It also has to be objectively severe or pervasive.

What is objectively severe or pervasive behavior?

Let’s look at this recent opinion in Beamon v. Tyson Foods, Inc.:

To make this determination, the Court considers the following factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance. The Court must look at the totality of the circumstances, and view the harassing conduct in context, not as isolated acts.”

In this particular case, over 11 months, there were a half-dozen incidents (four times a supervisor showed the plaintiff pornographic videos on his cell phone; and twice he made “arguably sexually-related comments”). While many folks — including the plaintiff — would argue that this type of behavior creates a hostile work environment, as a matter of law, the Beamon Court disagreed:

Although the alleged conduct of Beamon’s supervisor was boorish and inappropriate for the workplace, it was not sufficiently severe or pervasive to alter the terms and conditions of Beamon’s employment.”

The Beamon Court further relied upon a case from the Richmond, VA.-based Fourth U.S. Circuit Court of AppealsGreene v. A. Duie Pyle, Inc., which recognized that it takes a “constant and pervasive display” of pornography in the workplace to have a hostile work environment.

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If you have to use a “severe or pervasive” defense, you lose anyway

That’s right. While you will prevail in a hostile work environment lawsuit if the behavior is neither severe nor pervasive, just getting to court is a loss. It’s a big waste of time. And lawyers aren’t free. (Thank God!)

But, why not avoid all of that by making sure that you have a good anti-harassment policy?

Train folks on the types of behaviors that are (and aren’t) permitted on the workplace, and provide an effective complaint procedure for the times when your training slips through the cracks. That way, isolated incidences of harassment may be addressed quickly and effectively to avoid repeat performances.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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