When people call and ask for me to take their case, they often claim they have been subjected to a "hostile work environment." We often hear the term used to describe situations where someone is being subjected to sexual harassment. Others believe that any time a boss or coworker have it in for us and take actions we think are meant to harm us at work that we are being subjected to a hostile work environment. However, a claim for a "hostile work environment" is not limited to situations involving sex harassment, but it does not include every negative or hurtful action taken against us in the workplace.
Like all forms of illegal workplace discrimination, a claim for a hostile work environment is limited to those situations where the hostile environment is based upon our membership in a "protected class," i.e. our gender, race, age, disability, national origin, religious beliefs, and here in Minnesota, your sexual orientation, among others. Thus, in order to succeed on your claim, you must show that the hostile environment you are experiencing is based on your membership in a protected class.
The Minnesota Supreme Court recently clarified what constitutes a hostile work environment in the case of LaMont v. ISD # 728. Carol LaMont was a custodian at the Elk River, MN high school. She reported to supervisor Doug Miner. According to the opinion, Miner made several comments to his employees and co-workers that indicated his negative view of women in the workplace. These comments included that he did not want any women on his crew, telling LaMont "I have no intention of ever asking you anything," describing a coworker's wife as "not bad," and stating to Miner that "[w]omen have their place. You've got to keep them in their place." Miner also opined that the only place for women is the "kitchen and the bedroom." Once LaMont saw Miner lifting a heavy object and warned Miner not to "screw up" his back, Miner responded, "The only screwing I do is with my wife." On another occasion Miner stated to LaMont, "There is a time and a place for women and Elk River High School is not the time or the place." Miner also differentiated female workers from male workers in the manner in which they could take breaks, assigned men and women to different work areas and prohibited the female custodians from talking unless they were on a break. Miner also instructed his night lead custodian to tell the two female custodians they could not talk to each other or to the male custodians. Miner told a male custodian not to speak to the two female custodians and that he could be "fired within 30 days" if he associated with the female custodians. Miner explained that his instructions about refraining from talking were designed to promote productivity.
The court in this case had to grapple with two issues. First, could LaMont state a claim for a sexually hostile work environment when there was no evidence of sexual harassment. Second, if she could state such a claim, was the evidence in this case sufficient to support such a claim?
The court held that a claim for a hostile work environment based on sex did not have to include instances of sexual harassment, i.e. sexual touching, comments or come-ons. Rather, it held that comments and actions that were based on sex could create a hostile work environment in the absence of sexual harassment.
But the court also held that the evidence presented in this case was not sufficient for LaMont to state an actionable claim for hostile work environment. Generally, to succeed on a hostile work environment claim, a plaintiff must prove that (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on membership in a protected group; (4) the harassment affected a term, condition or privilege of her employment; and (5) the employer knew of or should have known of the harassment and failed to take appropriate remedial action. The employee must also show that the harassing conduct was "so severe or pervasive" as to alter the conditions of the plaintiff's employment and create an abusive working environment.
The court concluded that LaMont's working conditions were not severe or pervasive enough to constitute an actionable hostile working environment. The court noted that none of Miner's statements were "physically threatening" and were more akin to "offensive utterances." In sum, the court found the conduct non-actionable because it was infrequent and not severe.
Notably, two of the seven justices dissented from the opinion. They found that it was possible for Miner's comments to have affected LaMont's terms and conditions of employment.
In my opinion, I find it hard to understand how Miner's conduct, comments and attitude, when taken as a whole and in his position as a supervisor, could not affect LaMont's employment environment negatively because of her sex. At a minimum, it seems to me that a jury should have been given the opportunity to hear and see the witnesses testify about whether Miner's behavior was sufficient to create a hostile work environment. But because a majority of the court held it was not, the court seems to be setting a fairly high bar for employees hoping to succeed in bringing a hostile work environment claim against their employer.
