A hostile work environment claim requires proof of:
(1) membership in a protected group; (2) harassment (3) based on a factor rendered impermissible by Title VII; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment yet failed to address it promptly.Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir. 2012).
If the harasser is plaintiff's supervisor, though, and not a co-worker, liability depends on certain other factors:
If the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). Mitchell v. UTLX Manufacturing, LLC, (5th Cir. 2014).
Title VII is violated when "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Mendenhall v. Mueller Streamline Co., 419 F.3d 686, 691 (7th Cir.2005) (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). "An actionable hostile environment claim requires the plaintiff to prove: (1) that the work environment was both subjectively and objectively offensive; (2) that the harassment was based on membership in a protected class; (3) that the conduct was severe or pervasive; and (4) that there is a basis for employer liability." Id. The factors that we may consider in deciding whether the environment is hostile include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). Alexander v. Casino Queen, Inc., 739 F. 3d 972 (7th Cir. 2014).
To avoid summary judgment on a hostile work environment claim, a plaintiff must provide sufficient evidence to create a genuine issue of material fact as to [the] four elements. Chaib v. State, 744 F. 3d 974 (7th Cir. 2014).
This "demanding" standard requires "extreme" conduct "rather than merely rude or unpleasant" conduct. Cross v. Prairie Meadows Racetrack & Casino, Inc., 615 F.3d 977, 981 (8th Cir.2010). [Courts] look to the totality of the circumstances to consider whether the plaintiff has established "that discriminatory intimidation, ridicule, and insult permeated the workplace." Id. (emphasis added). Rester v. Stephens Media, LLC, 739 F. 3d 1127 (8th Cir. 2014).
"To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse." Alfano, 294 F.3d at 374 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Moll v. Telesector Resources Group, Inc., 760 F. 3d 198 (2nd Cir. 2014).
"[E]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice'" for purposes of the limitations period for filing EEOC charges. National Railroad Passenger Corp. v. Morgan, 536 U.S. at 114, 122 S.Ct. 2061. "[E]ach discrete discriminatory act starts a new clock for filing charges alleging that act." Id. at 113, 122 S.Ct. 2061. . . . The [Supreme] Court distinguishe[s] claims involving discrete acts of discrimination from claims alleging a hostile work environment: "Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Id. at 115, 122 S.Ct. 2061. Thus, a hostile-work-environment charge is timely as long as "any act falls within the statutory time period," even if the charge encompasses events occurring prior to the statutory time period. Id. at 120, 122 S.Ct. 2061 (emphasis added). Adams v. City of Indianapolis, 742 F. 3d 720 (7th Cir. 2014).
THIS CASEBOOK contains a selection of 49 U. S. Court of Appeals decisions that analyze and discuss issues arising from an employee's charge of a hostile work environment. The selection of decisions spans from 2012 to the date of publication.