No adverse employment action sinks Title VII claim

• Date: 01 December 2020
• Published date: 01 December 2020
• DOI: http://doi.org/10.1002/nba.30902

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DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Hostile work environment

Judge rules discriminatory behavior

sufciently pervasive

Not long after she was hired on a two-year contract

by the U.S. African Development Foundation in 2015,

the plaintiff made separate complaints to a human

resources representative and to the foundation’s gen-

eral counsel about her supervisor. She claimed to both

that the supervisor constantly: (1) called her desk

during work hours to talk about personal matters for

two or three hours at a time, (2) often followed her

all around the building and (4) frequently called her

at home when apparently intoxicated.

According to the plaintiff, both the representative

and the lawyer admitted receiving similar complaints

about that supervisor in the past.

Convinced that nobody had done anything about

the situation, the plaintiff unsuccessfully led a for-

mal administrative complaint about the supervisor

in November 2016.

In late 2017, the foundation told the plaintiff that

“budgetary constraints” forced it to let her two-year

term expire.

The plaintiff believed the stated reason was bogus

because: (1) nobody else had been terminated and

(2) the foundation was advertising two available job

openings at the time.

The plaintiff led a suit.

One of her claims was a hostile work environment.

In addition to pleading the facts contained in her

previous complaints to foundation management, the

plaintiff alleged: (1) she was Black, (2) the supervisor

was white and (3) the employees harassed by that

supervisor in the past were all Black.

The foundation led a motion to dismiss, arguing

the plaintiff’s allegations didn’t reach the “high bar”

she was required to overcome when making a hostile

work environment claim.

It contended that the plaintiff’s characterization

of the alleged harms was far too vague to make the

requisite showing of a work environment “permeated

with discriminatory intimidation, ridicule, and in-

sult.” According to the foundation, the plaintiff had

merely depicted the type of ordinary workplace trib-

ulations that courts routinely found nonactionable.

The foundation acknowledged that the supervisor’s

alleged behavior might have been strange or rude,

but said courts had previously dismissed suits with

allegations depicting far worse conduct.

The district court judge agreed that the plaintiff

was required to allege that her employer subjected

her to discriminatory intimidation, ridicule and insult

that was sufciently severe or pervasive to alter the

conditions of her employment. He also agreed that

sporadic incidents of rude or unprofessional behavior

were inadequate.

The judge said courts evaluating hostile work envi-

ronment claims looked to the totality of the circum-

stances, including the frequency of the discriminatory

conduct, its severity, its offensiveness and whether

it interfered with an employee’s work performance.

EMPLOYEE WINS ➔ The judge said the ap-

plicable test was expressed in the disjunctive, and a

hostile work environment could exist if the alleged

misconduct was either “severe” or “pervasive.”

The judge agreed that the plaintiff might not have

shown severe misconduct. However, he refused to

dismiss the claim, ruling the allegations depicted very

pervasive wrongdoing.

[Ward-Johnson v. Glin, U.S. District Court for the

District of Columbia, No. 1:19-cv-00534, 05/28/2020]

Title VII

No adverse employment action sinks

Title VII claim

The plaintiff was an IT specialist at the New York

State Ofce of Information Technology Services who

complained to human resources and others in 2017

that her supervisor was telling crude sexist jokes and

making offensive comments. She claimed that one

joke he repeatedly told implied that displaying her

bare breasts would enhance her professional advance-

ment in the ofce.

The human resources ofce concluded after an

investigation that her accusations were substantiated

and told her that action would be taken.

But the plaintiff claimed that nothing was ever done.

She also contended that no steps were taken to

protect her from retaliation.

According to the plaintiff, the supervisor retaliated