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As discussed in our previous articles about hostile work environment claims in sexual harassment cases and race discrimination cases, the severity and pervasiveness of harassment necessary to qualify as an unlawful hostile work environment is extraordinary.  Many employment claims are made based on an occasional joke made in poor taste and microaggressions.  Even if the employee’s allegations are true, they often do not meet the requisite degree of severity or pervasiveness to be considered by courts to be unlawful.  By showing that the conduct does not meet this high threshold, a Florida employer can successfully prevail against these types of claims.  A recent federal appellate case from the United States Eleventh Circuit Court of Appeals (the federal appellate court governing the federal trial courts in Florida), Fernandez v. Trees, Inc., 18-12239, 2020 WL 3053383 (11th Cir. June 9, 2020), has further clarified this standard.  Peter Mavrick is Fort Lauderdale employment attorney who defends employers throughout South Florida.  The Mavrick Law Firm has extensive experience in defending businesses and their owners against claims alleging employment discrimination, retaliation, and unpaid wages.

Title VII of the Civil Rights Act of 1964 prohibits employers with more than 15 employees from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).

To establish a hostile work environment claim, a plaintiff must show that:

(1) he belongs to a protected group;

(2) he suffered unwelcome harassment;

(3) the harassment was based on a protected characteristic of the employee, such as national origin;

(4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and

(5) the employer is responsible for that environment under a theory of either direct liability or vicarious liability.

Fernandez v. Trees, Inc., 18-12239, 2020 WL 3053383 (11th Cir. June 9, 2020).

For a plaintiff-employee to prove that he worked in a hostile work environment, he must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). “The employee must ‘subjectively perceive’ the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable.” Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999).  “[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999).

To determine whether harassing conduct objectively altered an employee’s terms or conditions of employment, courts consider (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.  Allen v. Tyson Foods, 121 F.3d 642 (11th Cir.1997) (explaining the factors to consider when determining whether conduct is objectively harassing). “The Supreme Court has emphasized that ‘no single factor’ is necessary to satisfy the objective inquiry of a hostile work environment claim.” Fernandez v. Trees, Inc., 18-12239, 2020 WL 3053383 (11th Cir. June 9, 2020).

In Fernandez, the court was considering whether the plaintiff-employee’s workplace harassment was so severe to qualify as a hostile work environment.  Id.  The plaintiff-employee and his Cuban co-workers had endured nearly daily harassment from their supervisor.  The plaintiff-employee complained about the behavior, and the employer did nothing.  This ultimately culminated in the plaintiff-employee attempting to end his own life by dousing himself in gasoline, but was stopped through a coworker’s heroism.  The trial court had determined that this was not sufficiently severe and pervasive harassment and granted summary judgment in favor of the employer.

Fernandez compared the case to Alexander v. Opelika City Schools, 352 F. App’x 390 (11th Cir. 2009), where a black plaintiff testified that he was constantly called “boy,” “but he could only recall eight such instances during a two-year period.”  The Alexander case recognized that a supervisor’s use of “boy” to refer to black employees is evidence of racial animus, but found that these eight instances were not sufficiently severe and pervasive to create a hostile work environment.

By contrast, the Fernandez employee-plaintiff could point to almost daily examples where comments were made about his protected class in his presence, including discriminatory references to “crying whining Cubans” and discriminatory announcements that there would be “no more Cubans” working there.  “Even if these examples were the only discriminatory remarks [the supervisor] made during [the employee’s] final two months of employment” there are other cases where harassment at a lower frequency was sufficiently pervasive to qualify as a hostile work environment.  Fernandez v. Trees, Inc., 18-12239, 2020 WL 3053383 (11th Cir. June 9, 2020).  Fernandez found that the claimed conduct was sufficiently severe.

The circumstances described in Fernandez are extraordinary.  The case highlights that it is difficult for an employee to prevail on a hostile work environment claim in anything but the most extreme circumstances.  Employers who are able to show that workplace harassment was not severe and/or pervasive to be unlawful under Title VII will prevail in hostile work environment claims.  Peter Mavrick is a Fort Lauderdale employment lawyer who represents South Florida businesses.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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