Winning a Hostile Workplace Claim: Usually, It Takes More Than One Email

By Eric B. Meyer

When an employee sues his former employer alleging a religiously hostile work environment, he must prove, among other things, that he was subjected to harassment based on his religion and that the harassment was either severe or pervasive.

What do you think? Is the email below from a company General Manager severe enough for ya?

Can I just say something I shouldn’t to you here — he is SUCH A JEW! In a BAD way. He’s what gives Jews a bad name. He’s smarter. He’s better. He’s owed. He will do anything to keep from opening his wallet — right down to not eating!!!! And I am DEAD serious here!!! That’s why he expenses every single thing he can because he won’t pay anything! I have not seen him bring one single thing into this office in all the time he’s been here — period. (that he paid for) IF he does bring something in he expenses it. . .I COULDN’T say to him what I just did to you — that HE is what gives Jews a bad name!!!”

Let’s see what a New Jersey court said, after the jump.

Can someone get fired for a single comment?

The case is Shain v. HEL Limited. I’ll summarize the pertinent facts for you:

  • The company’s General Manager sent the despicable email above to its Managing Director, who is also the plaintiff’s direct supervisor.
  • The plaintiff was not a direct recipient of the email, but found it in a company database, whereupon he brought it to the Managing Director’s attention and demanded that the GM be fired.
  • Both the Managing Director and GM promptly apologized to the plaintiff, and the GM was given a last-chance warning; but was not fired.
  • The plaintiff quit and sued for religious discrimination, basing his case on the single email.

Now, I have not conducted a 50-state survey, but my guess is that New Jersey is one of the exceptions to the rule. That is, I’d wager that it is one of the few states that has held that a single discriminatory comment can create an actionable hostile work environment claim. Still, those times in which a single incident will suffice to create an actionable hostile work environment claim are highly unusual. In less extreme circumstances, a single comment will not suffice to create a tenable discrimination claim.

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Why the plantiff didn’t win

And that’s what we have here, according to the Shain Court. Based on the single email, it ruled in favor of the employer. The court had four reasons for its decision.

  • First, the email was not directed to the plaintiff.
  • Second, the email was sent by someone other than his direct supervisor.
  • Third, both the sender and the recipient promptly apologized. 
  • Fourth, the company took action that was reasonably designed to end the discrimination — and, in fact, did. (Although, if it were me, I would have recommended immediate termination. Intolerance like that has no place in my workplace).

Employment lawyers: If you know of courts in other states that, like NJ, have permitted a one-act hostile work environment claim to go to trial, please let me know in the comments below.

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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