Name calling, dirty jokes, and profanity by a work supervisor towards a subordinate may not be enough to succeed in federal court under Title VII of the Civil Rights Act. A recent string of court decisions makes clear that as long as the manager treats all employees equally as rudely and insensitively – what one writer for the Wolter Kluwers Employment Law Daily describes as “an equal-opportunity jerk” – the complaining worker might not have enough for an employment discrimination or sexual harassment claim.
Surprised? Here are a few examples of language and behavior that most people would find sufficiently shocking and offensive, yet the court found insufficient to support a discrimination or hostile work environment claim:
- A supervisor of an African American employee would snap his fingers and say things such as “y’all blacks are sneaky people”
- A Puerto Rican employee overheard his supervisor refer to Puerto Rican employees as pigs, make fun of people with accents, and make lewd comments about female body parts
- A pregnant woman was taunted by her supervisor who repeatedly called her a fat cow and made mooing noises when she was near
Incredibly, the courts sided with the employers in these cases and dismissed the actions, reasoning that the comments were too isolated, that the employers were not acting discriminatorily because they subjected all employees to these types of remarks, or that the comments were not directed towards the plaintiffs. There is some solace in the fact that in situations where the employees were terminated after complaining about the discriminatory conduct, courts have allowed retaliation claims.
Though the law does not require common courtesies or good management skills, employers should take complaints seriously to improve employee morale and productivity. In addition, defending such claims can be very expensive and burdensome.
If you have been subject to offensive comments at work and question whether you may have an employment discrimination action, the attorneys at Sommers Schwartz are available to discuss your situation with you.