When a Hostile Work Environment is not Really a “Hostile Work Environment”

In employment law, the phrase “hostile work environment” is an often misunderstood concept. We often receive calls from people claiming that their boss is a true jerk who screams at everyone and has everyone at work constantly on edge because they never know when the next yelling fit will occur. A screaming boss does sound pretty “hostile” in the normal sense of the term and, if it is happening in the workplace, then it must be a “hostile work environment,” right? More often than not, the answer is no and these people are quite disappointed to hear that their boss has not broken any employment laws.

A hostile work environment refers to a situation where an employee is subjected to harassment in the workplace and may not even be able to do his job because of the offensive, intimidating, or oppressive atmosphere created by the harasser. In order to be a hostile work environment, the harassment must be due, at least in part, to some protected characteristic of the person being harassed, such as age, disability, race, gender, or pregnancy. If the boss  is subjecting an employee to less than ideal treatment simply because he is, for example, a Red Sox fan and the boss hates Red Sox fans, then this would not equate to a hostile work environment because the conduct is not based upon a characteristic or trait protected by federal employment laws. Even if some action is possibly based upon an employee’s being a member of a protected class, the conduct must still be “severe or pervasive” enough to create a hostile work environment. The United States Supreme Court has made it clear that Title VII, which prohibits race, ethnic, gender, and religious discrimination, is “not a general civility code.” As such, federal laws relating to the workplace do not prohibit offhand comments, casual teasing, or isolated incidents that are not serious.

Hostile work environments exist where a boss mocks or makes fun of an employee with a disability or a supervisor who tells crude sexist or racist jokes. If such actions are “severe or pervasive” enough then they can constitute a hostile work environment. If the boss, however, is an “equal opportunity jerk” who treats pretty much everyone at work horribly, regardless of whether they are a member of a protected class or not, then he probably is not doing anything illegal or creating a hostile work environment. If you feel you are being subjected to a hostile work environment, then you should speak with an employment law attorney.

Overtime Exemption Laws may get an Overhaul

As you may have heard, President Obama has directed the Department of Labor to “modernize and streamline” overtime exemptions. The directive aims to simplify and minimize exemptions that prevent employees from receiving overtime pay under the Fair Labor Standards Act. Some of the primary areas addressed are exemptions relating to white collar employees, home health care workers, and computer professionals, to name a few. The proposed changes could mean that many American employees become entitled to overtime pay, even if they are not currently receiving it.

The FLSA requires that all non-exempt employees be paid one and one half times their normal rate of pay for every hour over forty hours worked per workweek. President Obama’s proposed changes could affect many American employees who work significant overtime hours. More to come.

FMLA Article by Attorney J. Scott Falls Published in South Carolina Lawyer Magazine

Attorney J. Scott Falls and summer law clerk/law student Emily Nellermoe’s article on the mistakes employers make in assessing FMLA leave has been selected for publication by the South Carolina Lawyer magazine. It was published as the cover story of South Carolina Lawyer in the January 2014 edition. Employees who work for employers with more than 50 employees should read the article to understand their rights under the FMLA. If you have an FMLA question or concern, please contact us. Click on the link above to read the article.

Pregnancy Discrimination in the Workplace


Given the frequency of women who chose to start a family while maintaining employment, it can be hard to believe that pregnancy discrimination still exists. Despite the reality of modern workplaces, discrimination against and harassment of expectant mothers actually occurs all the time. Fortunately, there are federal and state laws in place to protect women from such workplace behavior.


In 1978, Congress amended the definition of gender discrimination in Title VII by adding the Pregnancy Discrimination Act, which prohibits discrimination because of pregnancy, childbirth, or related medical conditions in workplaces that employee 15 or more workers (Pub. L. No. 95-555, 92 Stat. 2076 (1978), amending 42 U.S.C. § 2000e-(k)). The Act states that an employer is prohibited from terminating or refusing to hire/promote a woman on the basis of her pregnancy. Employers cannot discriminatorily assign or re-assign pregnant women to unfavorable positions, take away their benefits, or require mandatory leave periods.

Pregnancy by itself is not a disability because it is not an impairment (unless a related medical condition develops, e.g. gestational diabetes or another ADA-eligible disability). However, a pregnant woman must be treated the same way as other similarly situated sick or temporarily disabled workers; this means that if disabled or sick workers are entitled to receive reasonable accommodations, alternative assignments, or paid/unpaid leave, pregnant women are entitled to as well.


Employers cannot discriminate against job candidates during an interview or job placement process because they are pregnant. In addition, any gender-specific interview questions, including those related to childbearing or motherhood, are prohibited (EEOC Sex Discrimination Guidelines, 29 C.F.R. § 1604.7 (1983)).   In the case King v. Trans World Airlines, Inc., 738 F.2d 255 (8th Cir. 1984), Ms. King, a mother of four, was being interviewed for an entry-level position with the kitchen department at Trans World Airlines (TWA). During the interview, Ms. King’s interviewer asked her questions about her recent pregnancy, her marital status, the number of children she had, whether these children were “illegitimate,” and her plans for future childbearing. After this process, TWA informed Ms. King that there were no openings in the kitchen department; however, within that same month, TWA proceeded to hire at least ten people for the exact same position. The Court ordered the employer to grant Ms. King injunctive relief (protection against future discrimination and another chance at the interview).


Pregnancy harassment can be physical, verbal, or written and involve offensive or unwelcome comments, jokes, gestures, etc. related to a woman’s pregnancy. Harassment in the workplace becomes unlawful when such acts become so frequent and/or severe that both a reasonable person (objective test) and the employee herself (subjective test) could perceive that a hostile or abusive work environment has been created (see Harris v. Forklift Systems Inc., 114 S.Ct. 367 (1993)). Anyone, including supervisors, coworkers, and customers, can potentially create a hostile work environment.


Women who qualify for and take FMLA maternity leave must be reinstated to the same position with the same responsibilities that they had prior to taking leave. Employees and employers who aren’t covered under the FMLA must still abide by the PDA’s rule of equivalent disability treatment discussed above. In Garner v. Wal-Mart Stores, 807 F. 2d 1536 (11th Cir. 1987), a Wal-Mart department manager, Ms. Garner, took approved maternity leave. Upon her return, Ms. Garner was given the new job title of “floater,” which had far fewer responsibilities than her previous position. Especially in light of the fact that Wal-Mart had once before held open a male department manager’s position for him while he took sick leave, the 11th Circuit held that Ms. Garner had established Title VII sex discrimination because she hadn’t been given her old position back; the court awarded Ms. Garner nominal damages.


In order for a woman to show gender discrimination on the basis of pregnancy, she must demonstrate the traditional elements of prima facie Title VII sex discrimination: (1) that she is a member of a protected class [pregnant women]; (2) that she was performing her job satisfactorily at the time of her discharge or demotion; (3) that she was subjected to adverse employment action; and (4) that she was either replaced or treated differently than persons outside of the protected class. If the employee can show these four elements, then, according to the McDonnell-Douglas burden-shifting analysis, the employer must demonstrate that the reason for the adverse employment action was unrelated to gender/pregnancy. The employee can attempt to rebut this by showing that the reason provided by the employer was pretext (a false excuse or cover-up) for a discriminatory reason.


In 2011 alone, pregnant women who filed charges with the EEOC or a related local employment agency (almost 5,800 claims) received $17.2 million in monetary benefits (this figure does not include damages obtained in litigation!). If you feel you have been discriminated against for the reasons discussed above, make an internal complaint with your employer, file a charge with the EEOC, and contact an attorney.

Supreme Court Revisits Retaliation

Retaliation claims under Title VII are one of the most frequently filed types of claims at the EEOC (31,000 in 2012), second only to claims of racial discrimination. A new ruling by the Supreme Court will likely curb these numbers sharply. The decision in University of Texas Medical Center v. Nassar, one of two employer-friendly opinions issued on the same day, is bad news for employees who feel they have been retaliated against for exercising their Title VII rights.

Title VII provides, “it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). An unlawful employment practice is “established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).

The plaintiff in the Nassar case was Dr. Naiel Nassar, a medical doctor of Middle Eastern descent. He alleged that his superior, Dr. Beth Levine, discriminated against him on the basis of his religion and ethnic heritage. After Nassar reported the behavior, his employer (University of Texas) withdrew a job offer it had made some time earlier. Nassar sued UT for harassment and retaliation, arguing that UT retaliated against his report of workplace discrimination by denying him a job it had previously offered him. Nassar’s case hinged on the reason behind UT’s decision to pull the plug on his job offer; he argued that an employer can be held liable for “retaliation” as long as retaliating was one of several motivating factors (the “motivating factor standard”) for an employer’s adverse employment action (here, the revocation of a job offer). UT argued that the standard for employer liability is higher (the “but-for standard,” meaning the plaintiff must show that the adverse employment action would not have occurred but-for the defendant’s conduct, i.e. the job offer would have never been revoked if Nassar had never reported Dr. Levine to UT for discrimination).

The Supreme Court agreed with UT. In a 5-4 decision written by Justice Kennedy, the Court required the employee-claimant to show that his protected activity (reporting a Title VII discrimination issue; see 42 U.S.C. § 2000e-3(a)) was the “but-for cause” of the adverse employment action (termination, not getting hired, demotion, pay decrease, etc.) taken against him. The Court made this determination after comparing and contrasted the relevant portions of Title VII to similar pieces of legislation, interpreting statute language and construction, inferring Congress’s intent, and stating the need to prevent frivolous and burdensome lawsuits in our legal system.   Prior to this, some lower courts had been on Nassar’s side, holding that an employer who made an adverse employment action could be held liable for retaliation even if there were other “valid” reasons for taking that action; now, the employee bears a bigger burden, and must show that the adverse employment action was taken for the primary purpose of retaliation.

What does Nassar mean for employees?

Unfortunately, this ruling has limited the scope of employees’ Title VII rights and makes it harder for victims of retaliation to sue by providing an easy defense for employers.  An employer can escape liability simply by showing that other reasons existed for the adverse employment action and that such action would have been taken regardless of any Title VII discrimination complaints made by the employee.  In her dissent, Justice Ginsburg laments that the Court’s decision has “undermined” the purpose of Title VII retaliation claims by encouraging employees to remain silent when they are victims of or witnesses to acts of discrimination in the workplace. We will have to wait and see if Congress revises Title VII or chooses to accept the majority’s interpretation.

Supreme Court Weighs in on Who is Considered a Supervisor for Purposes of Vicarious Liability under Title VII

Last week, the Supreme Court delivered an opinion in Vance v. Ball State University, answering the question of who qualifies as a “supervisor” under Title VII; their decision is going to have a big impact on dozens of active employment law cases.

Title VII of the Civil Rights Act provides that it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e—(2)(a)(1).

There are different levels of employer liability depending on who the harasser is. If the harasser is a supervisor, the employer is vicariously (i.e., automatically) liable under Title VII. The Equal Opportunity Commission and several lower courts have butted heads over the meaning of “supervisor.” The EEOC has maintained that a supervisor is anyone with “the ability to exercise significant direction over another’s daily work” while the courts have applied a more stringent standard (the ability of the person to undertake “tangible employment actions”, discussed below).

In this case, Maetta Vance, an African-American woman, claimed that Saundra Davis, her white co-worker, was creating a racially hostile work environment in violation of Title VII. Vance (a “catering assistant”) claimed that Davis (a “catering specialist”) was her supervisor, entitling her to Title VII protections; her employer, Ball State University, contended that Davis was not a supervisor because she did not have the power to “hire, fire, demote, promote, transfer, or discipline Vance.”

In a 5-4 decision delivered by Justice Alito, the Court sided with Ball State, stating that a “supervisor” is someone who has the ability to take “tangible employment actions” (i.e., an act which causes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”). This ruling rejects Vance’s and the EEOC’s “nebulous” definition of supervisor, saying it creates undue confusion among judges and jurors. Vance lost for two reasons: (1) Davis was not a “supervisor” because she did not have the power to take tangible employment actions against Vance; and (2) Vance was not able to show that Ball State was negligent or unreasonable in how they handled the situation.

What does Ball State mean for employees?

Unfortunately, this decision has limited the scope of employees’ Title VII rights and makes it harder for victims of harassment to sue right away. However, if a non-supervisor coworker is harassing you (see these blog posts for discussions of what “harassment” really is), your employer still has obligations to fulfill. Because harassment from any source can contribute to a volatile work environment, you can still complain to your employer, who then must take action to prevent the harassment from occurring again. If your employer is negligent in taking action and the harassment continues, you may have a valid Title VII claim. As the Court stated, “an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.”