Employment Law

Is Minor ‘Offensive’ Conduct Enough to Prove Hostile Environment?

The U.S. 6th Circuit Court of Appeals—which covers Kentucky, Michigan, Ohio, and Tennessee—recently heard a case from a female doctor asserting gender discrimination, hostile work environment, and retaliation citing a manager’s comments as “offensive.”

Facts

Dr. “Albright,” who is an occupational medicine physician, worked at Meharry Medical College from 2005 until her resignation in 2014. In addition to teaching and performing administrative duties beginning in 2008, Albright was responsible for the college’s student and employee health services. As a result, she was required to participate in collegewide committees, which required her to interact with Dr. “Houser,” the college’s head of facilities.

Albright claimed that Houser was dismissive of her, made belittling comments, and made noises of exasperation when she spoke at committee meetings. After a flood damaged the building in which Albright’s clinic was located, Houser forced her to move back into the building before she believed it was habitable. Houser also told others that he wanted to have a one-on-one physical examination with Albright, which she interpreted to be a sexual comment. She reported his comment to the college’s compliance hotline but never received a response or any follow-up.

Two and a half months after Albright made the report, her supervisor asked her to become a primary-care provider at Antioch, an off-site clinic run by the college. Albright refused the mandatory assignment. Her supervisor then asked three of her colleagues, two male and one female, to take the assignment. One of the men agreed, and the other was available to work there if necessary.

Less than 4 months later, Albright tendered her resignation and eventually filed a lawsuit. She claimed that Houser’s behavior and her supervisor’s request that she work at Antioch amounted to sex discrimination, that Houser’s comments and behavior created a hostile work environment, and that her supervisor’s request that she work at Antioch was in retaliation for her report to the college’s compliance hotline. The district court found in favor of the college on all of her claims and dismissed her lawsuit without a trial. Albright appealed.

6th Circuit’s Decision

To prove that she was discriminated against on the basis of her gender, Albright had to show that she suffered an adverse employment action and that her male coworkers were treated differently. She argued that her supervisor’s directive that she work at Antioch was an adverse employment action, but the court found her argument unpersuasive because she never actually worked there and she suffered no retaliation for refusing the request. Additionally, because Antioch was staffed with male physicians following her refusal to work there, she was unable to prove that male employees were treated differently than she was.

The court acknowledged that Houser’s alleged comments, which were generally limited to committee meetings, were “offensive.” However, it found that they were “sporadic,” not physically threatening, and didn’t affect Albright’s performance. They were therefore not severe or pervasive enough to establish the existence of an unlawful hostile work environment.

Although Albright claimed that her supervisor assigned her to work at Antioch in retaliation for her report to the compliance hotline, she admitted that she never told her supervisor about Houser’s comment or about her hotline complaint, and her supervisor testified that he didn’t know about them.

Albright argued that her coworkers’ knowledge of the incident should be imputed to her supervisor. The court disagreed, holding that she had to prove, through either direct or circumstantial evidence, that her supervisor knew about her protected activity. She was unable to do so, and that was fatal to her retaliation claim.  Bruce v. Meharry Medical College, No. 16-6678 (6th Cir., June 7, 2017).

Comments

This case serves as a reminder that not all workplace conduct employees dislike, even when it can be reasonably described as “offensive,” is unlawful. The behavior must be so severe or pervasive that it creates an objectively intimidating, hostile, or offensive work environment.

Rachel E. Burke, an editor of Ohio Employment Law Letter, can be contacted at rburke@porterwright.com or 513-369-4236.