Most employers are generally aware that federal and state laws protect employees from adverse employment actions because of pregnancy, including Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act (FMLA), and, potentially, the Americans with Disabilities Act (ADA). Employers should also be aware of and follow the Pregnant Workers Fairness Act (PWFA), which passed in 2023.
Employers, however, should also be conscious of how coworkers or supervisors communicate with employees who either are pregnant or may be planning to take parental leave to assist with a partner’s recent pregnancy, especially within the U.S. 7th Circuit Court of Appeals. Ill-received, off-the-cuff comments that some employees may think they made in jest could give rise to hostile work environment claims under federal law. Also, what one person may view as humor, another may view as harassment.
What Creates a Hostile Work Environment?
The 7th Circuit (which covers employers in Illinois, Indiana, and Wisconsin) recognizes “hostile work environment claims” under Title VII. Unlike a traditional Title VII claim, which requires an adverse employment action such as termination, demotion, or reduction in pay, a hostile work environment claim requires only that an employee demonstrate (1) the work environment was subjectively and objectively offensive, (2) the harassment was based upon membership in a protected class (which includes sex and pregnancy status), (3) the conduct was severe or pervasive, and (4) there is a basis for employer liability.
Accordingly, an employee could potentially file a hostile work environment claim against their employer even without suffering an adverse employment action.
The 7th Circuit has seen its fair share of employees filing hostile work environment claims related to pregnancy and parental leave, and many claims are in part premised on comments made by coworkers and supervisors.
Given that a key element of any harassment or discrimination claim is that the wrongful actions be premised on a protected class, these cases hinge on an employee providing some evidence from which a jury could infer that certain treatment was motivated by that protected class status. Often, the easiest way to prove that motivation is through comments or statements by another employee.
Although many times an employee may rely on a supervisor’s comments to support a claim, it is important for employers to understand that comments or actions by a coworker (who has no supervisory authority over the employee) could also give rise to a hostile work environment claim, depending on the circumstances.
While the 7th Circuit does recognize that a coworker’s statements likely affect a work environment less so than a supervisor’s comments, courts will still consider coworkers’ statements and actions when evaluating a hostile work environment claim.
What Are Some Examples of Inappropriate Comments?
Inappropriate comments or actions may not necessarily be obvious. Seemingly innocuous statements or comments could still provide an inference of harassment based on sex or pregnancy, including things like:
- Suggesting that other employees’ workloads will increase or be affected by another employee’s parental leave;
- Making suggestions that parental leave is too long or unnecessary or that it imposes a financial hardship on a company; and
- Suggesting that leave is not necessary (for example, “What does a man really do on parental leave?”).
Even if a hostile work environment claim is ultimately dismissed by a court, dismissal often doesn’t come until after discovery and summary judgment, which could be months after a lawsuit is filed. And even if litigation costs are covered by insurance, hostile work environment and other workplace harassment and discrimination claims are often very time-consuming for the employer. Accordingly, while a claim may be defensible, it is still best practice to try and avoid at all costs.
What Can Employers Do?
So, what can you do to prevent hostile work environment claims and ensure your employees aren’t subjected to potential workplace harassment?
- Have an antiharassment and antidiscrimination policy in place that is compliant with federal and state laws. Also, be aware that many larger municipalities may also have local laws or ordinances that may be more expansive than state or federal law. Often, there are additional protected classes within local laws and ordinances that aren’t covered under state or federal laws.
- Be sure all employees, even those who aren’t necessarily in a supervisory role, are provided antiharassment/discrimination training. As part of that training, educate all employees on how their seemingly “joking” comments and actions could potentially form the basis of a claim.
- Have a system in place for employees to report comments directed at them or comments they may have overheard directed at other employees and, importantly, a system to document those reports. Keep contemporaneous records of what was reported and, importantly, of what was done in response to the report.
- Take complaints or observations seriously and address them promptly. Even if comments or actions are made seemingly in jest, they still could bolster a lawsuit. Remedial action doesn’t always need to be disciplinary. Coaching (followed by documentation of the coaching) could go a long way in preventing future inappropriate comments or actions as well as staving off liability.
Bottom Line
In sum, jokes and sarcastic comments and actions about someone’s protected status always pose a risk in the workplace.
Coworkers may be friends outside of work, and some may have a relationship where those jokes are tolerated or even welcomed, but employers should be cautious if that behavior occurs in the workplace because it could subject them to liability.
Danielle Tierney is a partner with Axley Brynelson, LLP, in Madison, Wisconsin. She can be reached at dtierney@axley.com.