Does This Kind of Behavior Make For a Hostile Work Environment?

By Eric B. Meyer

Here’s a little new math: 1 crotch grab + 1 N-word + 1 threat + 4 sex slurs = 0 hostile work environments.

You won’t find this one on the SAT’s.

Nope, that math is courtesy of the St. Louis-based Eighth U.S. Circuit Court of Appeals in this recent opinion, in which a nursing home patient subjected the plaintiff, a phlebotomist, to, inappropriate behavior.

And all of that happened over a span of just 10 working days — two weeks!

So, how could this not be some sort of a hostile work environment?

Well, a hostile work environment requires harassment based on a protected class (such as gender or race) that is so intimidating, offensive, or hostile that it poisons the work environment. So, it must be severe or pervasive and offensive as subjectively viewed by the plaintiff and as it would be objectively viewed by a reasonable person.

Not bad enough behavior to violate the law

Here, even though the conduct was compressed into ten working days, the Eighth Circuit found it wasn’t enough to violate the law. From the opinion:

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The frequency of Ramsey’s conduct was moderate but its duration was brief. Watson testified to a total of eight instances of physical and nonphysical conduct by Ramsey over a period of ten working days. Offensive comments, under Missouri law, have been found sufficient to show a hostile work environment. Watson’s case, however, differs. Watson only worked at Plaza Manor for a couple of hours a day. Thus, she was not subject to Ramsey’s conduct throughout her workday as in other Missouri and federal cases finding a hostile working environment existed. Watson also acknowledges that her interactions with Ramsey lasted mere seconds.

Given the short duration of Ramsey’s actions, we conclude that an objective person would not find that Ramsey’s conduct was sufficiently pervasive to poison Watson’s work environment or permeate it with intimidation, ridicule, and insult. Ramsey’s physical touching of Watson was highly offensive, but applying controlling precedent, his act does not establish a hostile work environment attributable to Heartland.”

Tips for employers

Am I saying you get one free crotch grab in the heartland of America? Well, if I operated a business out there, I wouldn’t be inclined to have my employees test that theory.

All kidding aside, what you should take away from this is how important it is for a company to protect its workforce from co-workers AND third-parties.

Indeed, when the plaintiff complained to her employer about the patient’s rude behavior, it reassigned the plaintiff to a new patient. While clearly not a perfect solution, it was (kinda-sorta) reasonably designed to end the harassment.

When you control the workplace conditions, and anyone threatens your harassment-free workplace, do something about it. “He’s not my employee” is not an excuse. That’s a lawsuit waiting to happen.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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