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DealingWithHostileWorkEnvirClaim
- 1. The Pennsylvania Lawyer26 July/August 2015 Employment-Law Issues
- 2. Dealing with a Retaliatory HostileWork Environment Claim What you need to know By John B. Spitzer I t’s no secret that workplace retaliation claims are on the rise. Equal Employment Opportunity Commission (EEOC) statistics show that the number of such claims continues to increase. See the EEOC’s enforcement and litigation statistics for fiscal years 1997-2014, available on the EEOC website at www.eeoc.gov/eeoc/ statistics/enforcement. Pennsylvania is no exception to this trend. Recent cases involving Pennsylvania employers contain lessons for all of us on how to prevent and deal with these claims. Recent Cases An analysis of recent cases involving Pennsylvania employers shows that courts disagree on the proper legal standard to apply in disputes involving retaliatory hostile- environment claims. In direct retaliation cases, courts apply the U.S. Supreme Court standard: Was the challenged action “materially adverse” so that it “well might have dissuaded a reason- able worker from making or supporting a charge of discrimination”? Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006). In cases involving retaliatory hostile environment claims, there is disagreement among federal circuit courts concerning the applicable standard. One federal district court has noted that the 3rd U.S. Circuit, in contrast to several other federal circuit courts, 27The Pennsylvania Lawyer July/August 2015
- 3. The Pennsylvania Lawyer28 July/August 2015 has applied Burlington’s “materially adverse” standard in these cases as well as in those involving direct retaliation. Bergbauer v. Mabus, 934 F. Supp. 2d 55, 82 (D.D.C. 2013) (discussing Moore v. City of Philadel- phia, 461 F.3d 331 (3d Cir. 2006)). Notwithstanding Bergbauer’s analysis of the applicable 3rd U.S. Circuit standard in retaliatory hostile environment cases, there is ongoing disagreement among the U.S. district courts for the Eastern District of Pennsylvania concerning the appropriate test to apply in these cases, as distinct from direct retaliation claims governed by the Burlington standard. Some courts require an employee to show, among other factors: 1. That the employer’s conduct was “severe or pervasive,” making “the work environment … so abusive because of the discriminatory actions by her supervisors and co-workers that it changed the very nature of her employment”; and 2. That the hostile work environment led to “materially adverse” action or actions, which would have dissuaded a reasonable person from making a complaint of dis- crimination or retaliation. Komis v. Perez (E.D. Pa., July 15, 2015). Other courts have focused on the require- ment that the employee show “adverse actions” that “produce an injury or harm.” Daniels v. Sch. Dist. of Phila. (Case No. 12-2806, E.D. Pa., 2013); affirmed on other grounds, Daniels v. Sch. Dist. of Phila. (Case No. 14-1503, 3d. Cir. Jan. 20, 2015). Regardless of the current disagreements among federal district courts, in the 3rd U.S. Circuit, to survive a motion for sum- mary judgment in a discrimination case involving allegations of a retaliatory hostile environment an employee must, at a mini- mum, come forward with evidence from which a jury could reasonably conclude the following: 1. The worker engaged in activity pro- tected by Title VII; 2. The employer took a materially adverse employment action against the worker; and 3. There existed a causal connection be- tween the worker’s participation in the pro- tected activity and the adverse employment action. Immordino v. Bucks Cnty. Cmty. Coll. (No. 14-1736, E.D. Pa. 2015). Regardless of the standard that courts apply, Pennsylvania lawyers, whether representing employers or employees, can gain insight into the facts that give rise to Employment-Law Issues An analysis of recent cases involving Pennsylvania employers shows that courts disagree on the proper legal standard to apply.
- 4. 29The Pennsylvania LawyerJuly/August 2015 retaliatory hostile work environment claims from a study of these cases. One key take- away from these cases is that courts consid- ering retaliatory hostile work environment claims reject claims of bullying, trivial slights or behavior that is petty or uncivil. Rather, the courts focus on specific actions an employer takes after an employee files a discrimination claim that could dissuade a reasonable employee from making or supporting a charge of discrimination. Another key point: Because employer reprisals that create a hostile environment for workers who seek access to the courts have the potential to affect the entire work- place — and even undermine the integrity of the judicial system — attorneys may be more willing to pursue these cases than other discrimination cases. And some courts may, as Bergbauer notes, apply a more lenient standard in these cases than in other hos- tile-environment discrimination cases. In particular, the cases cited above counsel that an employer who takes any nonpaltry or nonfrivolous negative action against an em- ployee claiming discrimination is at great risk of facing a viable retaliation claim. Psychology of Retaliation Claims Assuming that more claimant attorneys will take these types of cases, recent court decisions make a point about workplace law that we Pennsylvania lawyers might want to think about: What type of supervi- sor thinking gives rise to these claims? Most experienced employers, longtime su- pervisors and seasoned human-resources professionals like to think that they behave rationally. Yet how many employers’ attor- neys have heard their clients say, “It’s not about the money — I can’t settle with this trouble-making employee,” even when the employer’s legal fees will far surpass the proposed settlement amount? So much for rationality! And how many of our clients, if they are accused of discrimination, harassment or other illegal conduct, will feel no defensive- ness, anger or other strong emotional reac- tion? If, for example, your client learns that someone has informed his or her boss that the client said or did something inappro- priate and that even if, in the opinion of the boss (and other independent and objective experts), that “something” was trivial, inof- fensive and insignificant, how would the client feel about the person who went over his or her head to the boss or to the EEOC? Some courts have focused on the requirement that the employee show “adverse actions”that“produce an injury or harm.” One key takeaway is that courts reject claims of bullying, trivial slights or behavior that is petty or uncivil.
- 5. Most of ourclients will not be so blunt as to warn, “If you go over my head, I’ll find a way to fire you.” But would a typical client or lawyer speak or act differently when interacting with a person who complained behind their back? How many of our clients or their counsel have the self-control, lack of emotion, grace under pressure, equanimity, fairness and good judgment sufficient in such matters to separate negative personal emotion from their professional workplace conduct? In the recent cases involving Pennsylvania employers cited above, all of the claimants alleged that their respective employers retaliated against them for filing discrimi- nation claims and, in the course of that retaliation, created a hostile environment. For example, in Immordino, the plaintiff alleged that her employer subjected her to increased scrutiny, critique and verbal abuse after she filed an EEOC complaint. In a key finding, the court said that Im- mordino’s testimony concerning her em- ployer’s treatment of her was relevant evidence sufficient to enable her to defeat her former employer’s motion for summary judgment on the claim of retaliatory hostile environment. Providing Better Advice The clear lesson of Immordino and the other recent cases in Pennsylvania’s federal district courts dealing with retaliation claims The Pennsylvania Lawyer 30 July/August 2015 An employer who takes any nonpaltry or nonfrivolous negative action against an employee claiming discrimination is at great risk. Employment-Law Issues
- 6. is this: Weneed to recognize that a con- tentious workplace dispute may affect our client’s judgment. At precisely the moment when a workplace dispute escalates, we must help our clients look deep within and sum- mon the courage, integrity, judgment and intelligence to seek the help of someone — counselor, adviser, mentor or other profes- sional — who can help them push away from their emotions and handle the work- place situation with fairness and decency. We lawyers could counsel our employer clients to defuse the workplace dispute by separating the complained-about supervi- sor from the complaining worker. We could further counsel the employer to con- sider “materially favorable” actions such as offering the employee opportunities for ad- ditional training or counseling or for out- placement. An employer who takes these positive steps may fare better, even if the case does end up before an agency. And the employee may end up seeking opportunities else- where, leading to a better outcome for both the worker and employer. Our employer and employee clients will spend less money on legal fees. They may find the workplace a better place in which to spend a signifi- cant portion of their lives. And I suspect that employment lawyers will somehow continue to earn a living. ⚖ • • • • • John B. Spitzer practices law in Pennsylvania. He has practice experience in employment law, employee benefits litigation and workers’compensation defense. The author is grateful to Pennsylva- nia attorney Mark Scheffer for pro- viding the inspiration for this article and for sharing insights gained from handling retaliatory hostile environment cases.The author thanks Pennsylvania and New Jersey attorney Doris J. Dabrowski for providing insight into the psychological aspects of employment disputes. If you would like to comment on this article for publication in our next issue, please send an email to editor@pabar.org. 31The Pennsylvania Lawyer July/August 2015