Employee's Title VII case to go forward

• Date: 01 September 2019
• Published date: 01 September 2019
• DOI: http://doi.org/10.1002/nba.30656

SEPTEMBER 2019 NONPROFIT BUSINESS ADVISOR

11

© 2019 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

During the ensuing investigation, the supervisor

claimed the video had been misunderstood.

The EEO department decided in December that the

“monkey” video was inappropriate and racially insen-

sitive, but said there wasn’t sufcient evidence that the

supervisor had actually been motivated by racial bias.

The plaintiff led a suit claiming he had been the

victim of a hostile work environment in violation of

Title VII because of the two alleged actions by the

white supervisor.

The defendant led a motion for summary judg-

ment, arguing: (1) no offense had been intended and

(2) neither the “reduction in force” comment nor the

monkey statuette—when considered separately or

together—had created a hostile work environment.

The district court judge ruled that in deciding

whether a hostile work environment existed, the al-

leged “reduction in force” comment added little to

the analysis because courts had usually refused to

hold that one incident was so severe as to constitute

a hostile work environment.

However, he cited a previous case that had been

decided by the D.C. Circuit involving allegations

that: (1) a team leader had used the “n-word” while

yelling at an employee, (2) the employer had delayed

in subsequently separating that employee and the

team leader from working together and (3) a senior

employee had made racially explicit statements to that

employee. According to the judge, that court declared

that the team leader’s use of the “n-word” might

well have been sufcient to establish a hostile work

environment. He also quoted a concurring opinion

in that case that had declared that the offensive word

by itself would establish a hostile work environment

for purposes of anti-discrimination laws.

EMPLOYEE WINS ➔ The judge refused to dis-

miss the suit. He explained that “given the history of

racial stereotypes against African-Americans and the

prevalent one of African-Americans as animals or

monkeys, it is a reasonable—perhaps even an obvi-

ous—conclusion that the use of monkey imagery is

intended as a racial insult where no benign explana-

tion for the imagery appears.”

[Vance v. O’Rourke, U.S. District Court for the

District of Columbia, No. 18-cv-00577, 02/22/2019].

Hostile work environment

Employee’s Title VII case to go forward

In 2014, the Virginia Department of Alcoholic

Beverage Control hired the plaintiff to work as a

part-time sales associate.

Three years later, she led a suit against the state

and several others that claimed an interim manager

had created a hostile work environment in violation

of Title VII. The plaintiff alleged that he had: (1)

made unspecied lewd sexual remarks and advances

toward her, (2) gone “on and on about the best sex

positions,” (3) massaged her fingers without her

consent, (4) hummed the song “Let’s Talk About

Sex,” (5) poked the plaintiff in her sides and back

while she was unloading cases of liquor, (6) “licked

his lips” when she walked by him and (7) cornered

her in the store several times to say, “Ooh la … come

with me, ooh la la.”

She also claimed the manager had once told her

he could write her up because she was “showing

too much cleavage” but he was “enjoying it.” When

the plaintiff responded to those remarks by placing

a sweater around her shoulders like a shawl, he

purportedly laughed and said, “I can still write you

up; now you’re covering up your name badge.”

The defendants filed a motion for summary

judgment, arguing that the allegations didn’t portray

conduct that was objectively severe or pervasive.

The district court judge explained that a female

plaintiff claiming a hostile work environment in

violation of Title VII must demonstrate that the

offending conduct was: (1) unwelcome, (2) based

on her sex, (3) sufciently severe or pervasive to

alter the conditions of her employment and create

an abusive work environment, and (4) imputable to

her employer.

He also said she was required to show that the

conduct was both subjectively and objectively severe

or pervasive.

Assuming that the plaintiff subjectively had found

the alleged conduct to be distressing, the judge said

whether or not the environment was objectively

hostile had to be judged from the perspective of

a reasonable person in the plaintiff’s position. He

also said a decision concerning that issue required a

consideration of all the circumstances, which could

include the frequency of the discriminatory conduct;

its severity; whether it was physically threatening

or humiliating, or a mere offensive utterance;

and whether it unreasonably interfered with the

employee’s work performance.

The judge also said harassment perpetrated by

a manager or supervisor against a subordinate

employee had a particularly threatening aspect.