Can One Workplace Incident Create a Hostile Work Environment?

What is a “hostile work environment?”

This seemingly straightforward three-word phrase has vexed employers, in-house counsel, and HR professionals alike when dealing with employee internal grievances of discrimination and harassment. It’s easy to discipline employees engaged in repetitive discriminatory or harassing behavior in the workplace.

More troublesome for employers, however, is the single racial slur or isolated incident of harassment, which can leave HR directors in search of legal guidance.

The Equal Employment Opportunity Commission (EEOC) has defined harassment in the workplace as being any unwelcome conduct based on race, color, religion, sex, national orientation, age, sexual orientation, or disability, among other protected classes, that becomes unlawful when the harassment endured by the employee “becomes a condition of continued employment,” or “the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

The EEOC has further expressed that “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality … to be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.” This seems a little more straightforward, but its application still can be tricky depending on the context and circumstances surrounding the claim of discrimination or harassment.

To make matters worse, the courts have not evenly applied these principles. Indeed, until recently, both the Second and Third Circuit Courts of Appeals had conflicting precedent on how these principles should be applied. That has changed.

“A single incident of harassment can create a hostile work environment.”

In recent months, both the Second and Third Circuit Courts of Appeals ruled that a single incident of harassment (i.e. a single racial slur) can create a hostile work environment. Thus, to the extent that employers in New York, Connecticut, Vermont, Pennsylvania, Delaware, and New Jersey may not have been paying attention to or investigating isolated incidents of harassment in the workplace, they had better be paying attention to those single utterances of harassment or racial slurs now.

These recent court rulings confirm that employers, under appropriate circumstances, may be held liable for hostile work environment harassment where a single, isolated yet severely offensive joke, epithet, threat, or insult interferes with an employee’s work conditions or performance.

The takeaway is simple and straightforward: a single incident of harassment, if severe enough, may alone establish a claim of hostile work environment. Once may be enough.

Castleberry v. STI Grp. and Racial Harassment in the Workplace

In Castleberry v. STI Grp., the United States Court of Appeals for the Third Circuit reviewed an appeal from the Middle District of Pennsylvania dismissing a claim of racial harassment on the basis that the facts pled by the plaintiffs did not support a finding that the alleged harassment was severe and pervasive.

In that case, Mr. Castleberry and another co-plaintiff were the only African-Americans laborers on a pipeline crew. They claimed that on several occasions someone had anonymously written “don’t be black on the right of way” on the sign-in sheets. They also alleged that when working on a fence-removal project, a supervisor told them, in front of their co-workers, that if they “n—-r-rigged” the fence, they would be fired.

They reported the offensive language to a superior and were fired two weeks later without explanation.

The trial court, citing precedent, dismissed the harassment claim on the basis that the harassment as alleged by the plaintiffs was not “severe and pervasive.” The Third Circuit, on review, disagreed and reversed the lower court’s ruling.

In no uncertain terms, the Third Circuit expressed: “The correct standard is ‘severe or pervasive.'” The court noted the significance of this distinction; under the “and” standard, isolated incidents cannot amount to harassment, whereas under the “or” standard, isolated incidents can create actionable harassment if the harassment is “extremely serious.”

The court explained that “some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.” The court reasoned that whether one isolated incident of harassment (i.e. the use of the “n-word” by a supervisor) is adequately severe to establish a hostile work environment will be context-specific, but it is clear that under appropriate circumstances it may be enough.

Clarifying, the Third Circuit wrote: “Whether an environment is hostile requires looking at the totality of the circumstances, including: ‘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.’

Daniel v. T&M Prot. Res., LLC on Racial Slurs in the Workplace

Similarly, in Daniel v. T&M Prot. Res., LLC, the United States Court of Appeals for the Second Circuit, citing the EEOC’s guidance, held that “whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment,” and that a “one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment.”

The court qualified its opinion, expressing that “isolated incidents usually will not suffice to establish a hostile work environment.” Still, the Second Circuit held that “a single episode of harassment can establish a hostile work environment if the incident is sufficiently severe,” and, citing preexisting precedent, expressed: “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet” by a supervisor in front of his subordinates.

What does all of this mean for employers?

Severe discriminatory conduct, even if not regular or pervasive, may establish a hostile work environment that is intimidating, hostile, or offensive to reasonable people under certain circumstances.

That means that employers and HR professionals must be diligent in responding to and investigating claims of harassment or discrimination, even where the grievance arises from a single, isolated occurrence. This obligation is amplified when it is a manager or supervisor harassing a subordinate, which by its nature can impute liability to the company even with appropriate remedial steps in place.

Employers should train and educate their workforce to prohibit – and not tolerate – any harassment in the workplace, even where the harassment isolated or irregular. Employers should review their anti-discrimination policies and employee handbooks to ensure that the appropriate grievance procedures, prohibitions, and policies are in place to stomp out every type of discrimination in the workplace. Otherwise, that one racial epithet or sexist comment may land employers in court.

An experienced employment law attorney will be able to assist in reviewing all of your employment documents to assure you are well prepared should a hostile work environment issue arise.

from New Jersey Law Blog http://ift.tt/2iiAZTw
via IFTTT

NJ School District Proposes Random Drug Checks

Livingston New Jersey has proposed a plan to begin random drug tests on high school students within its district. Causing a heated debate between, students, teachers, parents, and even the ACLU has weighed in. After 52 arrests from 2015 to 2017 the school district is hoping the random tests will be a form of “prevention, not punishment” as put by Superintendent Christina Steffner.

Looking Back at the Landmark Anti-Drug Abuse Act of 1986

The state of New Jersey had 1,901 deaths due to an opioid overdose in 2016. It is a humbling number, and can be difficult to wrap your mind around. The United States has been battling substance abuse for as long as we’ve been a country. There have been many attempts to stifle the proliferation of drugs in our communities. Sometimes those attempts have done more harm them good. This is one such attempt and the controversy that still exists today surrounding it. 

The Four Conclusions In a DCPP/DYFS Investigation

Last week, I wrote about the sort of things you may experience when the DCPP begins an investigation. Today I’d like to help try to make sense of the four possible outcomes that make up the way a DCPP case can be closed. Since April 1^st 2013 the parameters of potential findings became four tiers, “Substantiated,” ‘Established,” “Not established,” or “Unfounded.” This expansion took place to add more specificity to the findings. Accounting for the often unique situations that families find themselves in. 

What a DCPP Investigation Looks Like

If there is one state entity whose name carries with it controversy and strong opinions, it’s the Division of Child Protection and Permanency, formerly DYFS. It’s the regulatory body responsible for investigating all accusations of child abuse or neglect in the S  tate of New Jersey. This a massive topic, with plenty of nuance, but this short column will be focusing on what happens during the initial stages of a DCPP investigation.

Often the beginning of an investigation starts when a claim of abuse has been submitted. It can be submitted confidentially over a tip hotline. The person facing these accusations does not have a right to learn the name of the person who filed the claim against them. Regardless of the accuser’s identity, or whether that person is acting in bad faith, all of the claims submitted, within reason, are thoroughly investigated.

With a knock on the front door to the surprise of the family, the initial interview starts. They don’t need to inform you that they are coming. The investigators are known to use random checks to attempt to catch the family off guard. You can refuse to answer their questions but once you do it’s an agreement to be interviewed. Here’s what the investigators have to inform you of. That a report of child abuse has been leveled against you, and they have begun an investigation into the allegations. They will also be able to tell you some generalities of the charges that have been levelled against you. You can also ask for the investigators names and their superiors.

During the course of the investigation, the investigators will speak to the child, and anyone else in the child’s life such as their teachers or doctor that may be able to provide further information. Usually any siblings or immediate family close to the home will also be interviewed. This helps build a picture of the child’s overall life.

The investigators may ask the accused to sign a release allowing the access to information that is generally kept private such as doctors. You should never sign anything without fully understanding the extent in which it may affect your rights.

The DCPP is not able to file charges against those it is investigating. It also does not have the ability to arrest anyone. However should the situation warrant it, such as in claims of sexual abuse or the death of a child DCPP is required by law to contact the County Prosecutor’s Office who can should they see reason to move forward with filing charges. 

There is no right or wrong way of dealing with the DCPP/DYFS. While they generally close a case within sixty days, during that time many people feel a helplessness dealing with the DCPP. To someone dealing with them for the first time it’s imperative to know what their rights are and the rights of the DCPP investigators. Having the right attorney by your side can potentially keep your family together, and help make the situation feel less suffocating.

Should you require legal assistance, please contact us for your free consultatoin 800-709-1131. Or, fill out an online form and we can call you.

One Win for Plaintiffs and One for Defendants in Companion Class Certification Cases Today

Dugan v. TGI Friday’s, Inc., ___ N.J. ___ (2017).  In these two closely-watched consumer class action decisions, each of which involved claims regarding defendants’ alleged failure to disclose the price of drinks at their restaurants, plaintiffs and defendants each got some comfort from the 5-1 majority opinion authored by Justice Patterson.  In Dugan, where (as […]

The post One Win for Plaintiffs and One for Defendants in Companion Class Certification Cases Today appeared first on Appellate Law NJ Blog.

from Appellate Law NJ Blog http://ift.tt/2yYnQmC
via IFTTT

The Major Consequences of DUI’s for Minors

A sobering new study shows that 17 percent of fatal car accidents involve underage drivers. This is all the more startling because underage drivers only make up for 10 percent of the licensed public. Getting a DUI can be a pivotal moment in a young person’s life, putting their entire future on a different path for the worse. Colleges or future employment opportunities may be jeopardized if the DUI or DWI shows up on the application or resume. Not to mention the underage driver will be categorized as a ‘high risk’ client and will pay more in insurance for some time.