Employer Alert: Tenth Circuit Expands Scope of Hostile Environment Claims in Flashing Case

Last week, the Tenth Circuit Court of Appeals delivered new guidance as to the type of conduct that can support a hostile work environment claim in Macias v. Southwest Cheese Co.,(10th Cir. August 24, 2015) (https://www.ca10.uscourts.gov/opinions/14/14-2109.pdf).

Hostile environment claims require discriminatory conduct that is severe or pervasive enough to create an abusive working environment. When only one or two incidents of harassment are involved, the conduct must rise to the level of “extremely serious.” Up until now, the Tenth Circuit’s opinions have only addressed satisfaction of this high standard in cases where the isolated conduct is some sort of physical assault. In Macias, however, the Tenth Circuit signaled broader application of the standard by making clear that physical contact is not required for a single incident of harassment to be actionable. Specifically, the court ruled that a male co-worker’s genital exposure to the female plaintiff could support a hostile environment claim, finding that this act “was not only physically threatening and humiliating—if true, it was also criminal. …The environment was objectively hostile, and Ms. Macias subjectively perceived it to be so, fearing that [her coworker] might expose himself to her again or assault her in some way.”

The takeaway from this decision is that every complaint or known instance of sexual harassment must be taken seriously and addressed appropriately – even if it involves only one incident. It appears that the employer in Macias failed woefully in this regard, although the opinion admittedly focuses on the facts alleged by the plaintiff without presenting the whole story. According to the opinion, the plaintiff reported the flashing to her supervisor but company management never followed up with an investigation or response. A second female employee who reported flashing by the same coworker was fired within a week (albeit for unrelated reasons, according to the employer). There’s no suggestion in the opinion of the employer’s investigation of the plaintiff’s report or any disciplinary action against the flashing coworker. Furthermore, the court suggests the employer’s prior knowledge of the flasher’s penchant for genital exposure by noting that, a year prior to the alleged workplace flashings, the same employee had taken a picture of his genitals while attending a company social function and passed the photo around to company managers who were present – including the director of human resources. Had the employer been proactive in addressing this prior instance of inappropriate behavior despite its presumably humorous intent at a party, the company might have spared its female employees the flashings and avoided at least three lawsuits alleging hostile work environment based in part on this same employee’s conduct. The lesson? Turning a blind eye to an employee’s pattern of inappropriate conduct is not likely to end well for an employer.

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The U.S. Supreme Court Disagreed with 10th Circuit's Analysis in a Refusal-to-Hire Case Focused on the Wearing of a Religious Headscarf

On June 1, 2015, in an 8-1 decision, the U.S. Supreme Court ruled against Abercrombie & Fitch and for a Muslim job applicant, Elauf, who had been rejected for employment because her headscarf would conflict with the store's "Look Policy" which prohibited the wearing of caps on the sales floor. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., No. 14-86, 2015 WL 2464053. The evidence showed that the store's interviewer believed Elauf wore her headscarf because of her faith. The EEOC sued Abercrombie on Elauf's behalf for violation of Title VII. The U.S. District Court granted summary judgment for Elauf and awarded $20,000 in damages. The U.S. Court of Appeals for the 10th Circuit reversed, awarded Abercrombie summary judgment instead, and held that employer liability under Title VII ordinarily requires the job applicant to first prove that the employer had actual knowledge of her need for an "accommodation." 731 F.3d 1106, 1131 (2013).

Writing for the Court, Justice Scalia noted at the outset that the case was a “really easy” one. Scalia wrote Title VII proscribes two employment-practice categories described as "the 'disparate treatment' (or 'intentional discrimination') provision and the 'disparate impact' provision," and that the "word 'religion' is defined to “'includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to' a 'religious observance or practice without undue hardship on the conduct of the employer's business.'” 42 U.S.C. § 2000e–2(a) and § 2000e(j). 2015 WL 2464053, at *2-3. The Court rejected the argument that a Title VII plaintiff must show that the an employer had “actual knowledge” of the applicant's need for an accommodation and that, instead, the plaintiff "need only show that his need for an accommodation was a motivating factor in the employer's decision….[T]he intentional discrimination provision prohibits certain motives, regardless of the state of the actor's knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions." 2015 WL 2464053, at *3 (emphasis added). The Court rejected Abercrombie's argument that the store's neutral policy cannot constitute “intentional discrimination” because "Title VII does not demand mere neutrality with regard to religious practices…. Rather, it gives them favored treatment, affirmatively obligating employers not 'to fail or refuse to hire or discharge any individual ... because of such individual's' 'religious observance and practice.' An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an 'aspec[t] of religious ... practice,' it is no response that the subsequent 'fail[ure] ... to hire' was due to an otherwise-neutral policy." 2015 WL 2464053, at *4 (emphasis added). Finding that the 10th Circuit had misconstrued Title VII, the case was remanded for further consideration.

Justice Alito concurred in the result but disagreed with the Court's "knowledge" analysis. Justice Thomas (a former EEOC Chairman) concurred in part and dissented: "I would hold that Abercrombie's conduct did not constitute 'intentional discrimination.' Abercrombie refused to create an exception to its neutral Look Policy…. To be sure, the effects of Abercrombie's neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged disparate impact" and not "disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company's Look Policy." 2015 WL 2464053, at *8.

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