What Constitutes A "Hostile Work Environment?"

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.

Is Wisconsin's War Just On Women?

Wisconsin's Democrats have been claiming that Governor Scott Walker recently signed a law repealing Wisconsin's Equal Pay Enforcement Act as part of Republican's "war on women."  I covered this issue in some prior posts (here and here) as the law was passed out of Wisconsin's Assembly.  In my first post, I erroneously argued that the Assembly's bill would repeal Wisconsin's law providing for equal pay to women for the same work as men.  My post was based on an erroneous statement made by a Wisconsin's Democratic Assemblywomen's facebook post.  My friend Bart Torvik set me straight on that point, pointing out that the bill did not, in fact, repeal Wisconsin's law requiring equal pay for equal work.  Instead, it repealed people's right to seek certain damages for any type of discrimination in state court.
Nonetheless, Wisconsin Democrats have been trying to gain political traction by claiming that the repeal of this law will have a disproportionally negative effect on women.  Given that the law afforded all employees, regardless of gender, an avenue for redress in state courts, I do not think it is fair to claim that its repeal will have a disproportionate affect on women or that it constitutes a repeal of Wisconsin's law ensuring equal pay for equal work.

Those pushing for the repeal, however, have arguably provided a basis for some to claim that the repeal was motivated in part by gender. Wisconsin State Senator Glenn Grothman, who championed the repeal, argues that any gap in pay between men and women stems from women's decision to focus on child rearing instead of their career.  When shown statistics that even when taking life choices such as child rearing into account women still earn less than men, Grothman cited unsubstantiated "liberal" bias in the study and stated that he believed men cared more about money than women: "You could argue that money is more important for men. I think a guy in their first job, maybe because they expect to be a breadwinner someday, may be a little more money-conscious."

Brodkorb Case, Ctd.

I was recently interviewed by Minnesota Lawyer, a weekly newspaper for Minnesota's legal community, on the Brodkorb case which I have posted on in the past here, here and here.  The article in which I was quoted is here.  The take away from the article is that most legal observers believe Brodkorb has a very difficult case for the reasons I have previously stated.  The paper also ran an article on Brodkorb's decision to go so public with his allegations and threats of exposing other affairs in which I was also quoted.  It is an interesting analysis of the pros and cons of trying your case in the press.

Update: Senate Sex Scandal

I had previously posted about the circumstances surrounding the resignation of former Senate Minority Leader Amy Koch and the termination of her staffer Michael Brodkorb.  Brodkorb had previously threatened possible litigation, but it was unclear at the time what the facts were underlying his potential claim(s).

Today, Brodkorb confirmed what had long been believed - that he and Koch had an affair.  The Star Tribune has a copy of a letter sent to the Minnesota Senate by Brodkorb's attorney confirming the affair and alleging that terminating Brodkorb for the affair amounted to sex discrimination in violation the Minnesota Human Rights Act.  Brodkorb claims he was discriminated against because when female staffers had affairs with male legislators, they were not fired.  In essence, he is claiming that he was treated differently than women who had engaged in the same behavior (affairs with legislators) and therefore was a victim of discrimination. 

In what appears to be a transparent attempt to force the Senate into settling the matter, Brodkorb's attorney held a press conference in which he threatened to depose numerous legislators and their staffers about their alleged affairs to help prove Brodkorb's case.  Indeed, Cal Ludeman, the Secretary of the Senate, has labeled the threat of digging up other affairs as "blackmail." 

I think Brodkorb has at least three serious obstacles to succeeding on his potential claim.  First, he needs to prove that the females who allegedly not fired for having affairs were "similarly situated" to Brodkorb in all material respects.  That means that they had similar responsibilities, reported to the same people, etc.  Brodkorb was the communications director of the Senate.  I would argue that other staffers are not similarly situated to him as their duties, responsibilites and reporting responsibilities likely varied significantly from Brodkorb's.  If they were not similarly situated, Brodkorb cannot prove he was treated differently and his claims fail.

Second, in one opinion, the Eighth Circuit Court of Appeals held that terminating an employee because they had a consensual sexual affair with a supervisor did not amount to sex discrimination.  While the facts in the case are somewhat different than those presented here, the holding could make it difficult for Brodkorb to prevail.

Finally, Brodkorb's claims are based on the premise that when asked, the other staffers and legislators are going to admit that they had sex with one another.  If there is one thing I have found that people lie about under oath, it is sex.  Unless Brodkorb can testify that he witnessed these other people in the act, he has to rely on them testifying that these affairs occurred.  I wish him luck with that. 

In sum, I don't think Brodkorb's alleged claims have much merit.  But what really bothers me is the behavior of his attorney.  That is the type of thing that gives all lawyers a bad name.