It's not Discrimination, your Coworker's just a Jerk
Sept. 17, 2020
You have been working for months with a new coworker or manager. One who seems to get away with everything. They verbally push other coworkers around, or yell at their boss to get their way.
Not only that, but they are constantly using language that is crude and offensive to you. You feel uncomfortable with the language and you feel like you have to walk on pins and needles around your coworker lest he jump down your throat.
Does this sound familiar? If so, maybe you have been considering reporting your coworker's behavior to Human Resources; or maybe you already have but nothing has come of it. They tell you that although the behavior of your coworker isn't professional, it doesn't amount to discrimination.
But you feel threatened each time you walk into work. This clearly is a hostile work environment, you think. So, what gives? Do you have a case to bring against your employer for failing to take your complaints seriously?
BOORISH, VULGAR AND INAPPROPRIATE
You contend that the litany of expletives and vulgar comments your coworker spews forth daily is making you uncomfortable. On top of that, your coworker is pushy and bullies others to get his way. Isn't this a clear example of a hostile work environment?
WHEN DOES BAD BEHAVIOR EQUAL DISCRIMINATION?
First, simply being a jerk and bullying coworkers and customers around is not enough in itself to be discrimination under the Missouri Human Rights Act or federal Equal Employment laws.
Only those actions taken against an employee which negatively affects the compensation, terms, conditions or privileges of their employment can be considered discrimination. Furthermore, the basis or "motivating factor" for those actions must be either the employee's race, color, religion, national origin, sex, ancestry, age or disability.
In analyzing a complaint of gender discrimination in its 1998 Oncale v. Sundowner Offshore Services, Inc. decision, the U.S. Supreme Court explained that the use in the workplace of certain language which is sexual in nature does not by itself make it discrimination.
"We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations." Oncale v. Sundowner
The Oncale court further explained that whether actions are discriminatory depends on if those actions negatively affect members of one protective class (such as gender) while not affecting employees outside that protective class.
"[T]he critical issue is whether members of one gender are exposed to disadvantageous terms or conditions of employment to which members of the other gender are not exposed." Ibid.
In a 2007 case, the Missouri Court of Appeals for the Southern District upheld the trial court's granting of a Motion for Summary Judgment against the Plaintiff. In Barekman v. City of Republic, Police Officer Barekman complained about the behavior of his coworkers. His coworkers, both male and female alike, routinely told jokes/stories of a sexual nature in front of each other.
Nearly all of the other male and female police officers and other department employees engaged...made improper statements and used sexually explicit language in Barekman's presence. The "big joke in the entire department" was to engage in such conduct to see how quickly Barekman would become embarrassed and walk away. He was "constantly made the butt of everyone's crude jokes." Barekman
Barekman filed suit for Hostile Work Environment as a result of Sexual Discrimination, and Retaliation after he was forced to resign as a result of his filing a discrimination complaint against a fellow officer who was female. Though the court overturned the Trial Court's dismissal of the Retaliation count, it upheld the dismissal of Barekman's discrimination count.
In deciding the issue, the Barekman Court explained that "the only reasonable inference to be drawn from the facts is that Barekman was the butt of other employees' jokes because he was sensitive to, and easily embarrassed by, such behavior [and not because he was a male]. In short, Barekman has failed to establish a genuine issue of material fact concerning whether his gender was a contributing factor in his harassment."
The language used by Barekman's coworkers may have been crude and of a sexual and inappropriate nature but that does not in itself mean that he is the victim of discrimination.
"While the conduct of Barekman's fellow employees may have been boorish, vulgar and inappropriate, it does not constitute gender discrimination under the MHRA." Barekman
Whenever a complaint is made to a supervisor or Human Resources department of an employer, they have a duty and obligation to investigate the matter. But that does not mean they have to agree with you that you are the victim of either discrimination or a hostile work environment.
Sometimes you work with people are simply jerks but not jerks who are in violation of our anti-discrimination laws and policies.
If you believe that you have been discriminated against by your boss or coworker but your employer hasn't taken any steps to correct the problem, then you need to contact an experienced employment discrimination attorney to determine your options. Call Anthony Bretz and use his years of experience litigating discrimination and hostile work environment claims to fight for your rights.