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How Much Is Enough? Difficulties Defining "Hostile Work Environment" In Title VII Harassment Claims

Harassment based on sex, race, national origin, or religion, can interfere with the terms and conditions of employment and therefore can, when sufficiently severe, violate Title VII of the Civil Rights Act of 1964 ("Title VII"). As recently as the 1980s, harassment claims were only rarely pursued, comprising only 3% of all discrimination charges filed with the U.S. Equal Employment Opportunity Commission ("EEOC") in that decade. However, the issue of harassment has become increasingly well known and by fiscal year 2003, 17.6% of the total discrimination charges filed with the EEOC were harassment claims.

Hostile Work Environment

For harassment to be actionable under Title VII the offensive conduct must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21- 22 (1993). This standard requires that the environment be both objectively and subjectively offensive. Id. Otherwise stated, for actionable harassment to exist, a reasonable person must be able to find the work environment hostile or abusive, and the victim must actually perceive it to be so.

Unfortunately, there is no bright line test to determine whether an environment is sufficiently hostile or abusive. This makes harassment determinations difficult – not just for courts attempting to apply legal standards – but for human resource professionals and employment law specialists attempting to determine whether actionable harassment has occurred.

How Much Is Enough?

In deciding how much is enough, courts generally consider "the totality of the circumstances," including: the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct is physically threatening and whether the conduct unreasonably interferes with an employee’s work performance. No one factor is required in order to find actionable harassment, and there is no precise formula to use when considering these factors. In a limited number of situations, the presence of a single, severe act is sufficient to establish a claim of hostile work environment harassment. Perhaps the best examples of single, severe acts are cases involving rape of one employee by another. See, e.g., Ferris v. Delta Air Lines, Inc., 277 F.3d 128 (2d Cir. 2001) (decision in favor of a female flight attendant who was allegedly raped by a male co-worker during a brief layover in Rome). Such cases are extreme examples, and it is hardly surprising that the conduct is considered severe enough to create a hostile or abusive work environment.

More typically, however, the hostile work environment is created through a variety of incidents. Some incidents may involve touching, while others are merely comments. Glances or gestures may be involved. Some conduct may be directed at the alleged victim and some may simply occur in his or her presence. Some conduct may be explicitly sexual or racially motivated while other conduct is not. It is these cases that pose the greatest challenge and these cases that push the limits of hostile work environment law.

Severity: Talk vs. Touch

Unless workplace comments arise to the level of vulgar and humiliating verbal assaults, statements alone are generally not enough to transform an unpleasant work environment into a hostile one. This is a logical result given that the "severe or pervasive" requirement was designed to "filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender related jokes, and occasional teasing." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

Where comments are combined with unwelcome physical acts, however, the result may well be different. This is particularly true where there is intimate, forcible touching. For example, in Hostetler v. Quality Dining, Inc., 218 F.3d 798 (7th Cir. 2000) an assistant supervisor at Burger King claimed a coworker, Payton, grabbed her face one day at work and "stuck his tongue down her throat." Hostetler pushed him away and left the store. Payton approached Hostetler the next day, and in an attempt to keep Payton away from her face, Hostetler put her head between her knees. Payton proceeded to unsnap her bra. When Hostetler told Payton to take his hand off her, Payton just laughed and said he would undo it all the way. Payton left the room only after another employee suddenly entered. Within a week or two of these incidents, Payton stated in front of customers that he could perform oral sex on Hostetler so well that she would "turn cartwheels." The Seventh Circuit Court of Appeals described this case as "a close one," but ultimately held that the "physical, intimate and forcible" nature of the acts rendered the conduct severe enough to alter Hostetler’s work environment.

A case perhaps closer to the innocuous end of the hostile work environment continuum, Alagna v. Smithville R-II Sch. Dist., 324 F.3d 975 (8th Cir. 2003), involved a male science teacher, Yates, who frequently visited Kathy Lynn Alagna, the female school counselor, at her school office and called her at home to discuss his failed relationships and intimate details of his personal life. Frequently, Yates ended these conversations by touching Alagna’s arm and telling her that he loved her and that she was very special. However, he never discussed sexual activities related to his relationships, never sexually propositioned Alagna and never touched her anywhere other than her arm. The Eighth Circuit Court of Appeals found that Yates’ conduct, however inappropriate, was not sufficiently severe or pervasive enough to survive the "high threshold" for actionable harm required to establish a hostile work environment harassment claim. The court held that Yates’ conduct was more indicative of the conduct of someone in search of a friend than a sexual predator, and it upheld the dismissal of Alagna’s claim.

Severity: Sexual vs. Non-Sexual

When sexual harassment is the issue, the overt sexual nature of the behavior (i.e., a sexual proposition as opposed to an off color joke) may make the difference in whether a work environment is viewed as hostile or merely unpleasant.

In one decision from the California Court of Appeals, staring replaced sexual comments, raising a question as to whether actionable sex harassment existed. Birchstein v. New United Motor Mfg., Inc., 112 Cal Rptr. 2d 347 (Cal. Ct. App. 2001). Michelle Birchstein, an assembly line worker, began receiving unwanted sexual attention from a co-worker. The coworker asked her out on a date, told her he wanted to "eat" her and described various sexual fantasies he had about her. Birchstein complained to her foreman, and the co-worker stopped speaking to her. However, he began staring at her for several seconds at a time at least five to ten times per day. The staring lasted for more than six months. The trial court granted the employer’s motion to dismiss, but the appellate court reversed, finding that staring at a co-worker could qualify as actionable sex harassment, especially following the explicit sexual comments made to Birchstein.

A different type of "sexual touching" decision comes from the Northern District of Iowa, where Dennis Jones, a plant supervisor, was struck in the groin by a female co-worker. Jones v. United States Gypsum, 2000 WL 196616 (N.D. Iowa, Jan. 21, 2000). The woman who struck Jones had previously hit other male employees in the groin. The employer moved to dismiss Jones’ suit, arguing the conduct was not sufficiently severe or pervasive enough to constitute actionable harassment. However, the court denied the motion to dismiss, noting that the episode rose to the level of sexual assault. The court also noted that because the woman only hit male co-workers in the groin, the incident carried objectively sexual overtones and, based on the totality of these circumstances, the court found the incident sufficiently severe to survive the motion to dismiss.

On the flip side of cases like Birchstein and Jones appear cases with few sexual undertones. These cases are less likely to be viewed as severe enough to establish an actionable hostile work environment. For example, a plaintiff in an Eleventh Circuit Court of Appeals case alleged that her male supervisor called her at home, told her she was beautiful, made a comment about the "purity" of Indian women, unzipped his pants to tuck in his shirt, touched her on the knee, touched the hem of her dress and touched her jewelry. Gupta v. Fla. Bd. of Regents, 212 F.3d 571 (11th Cir. 2000). The plaintiff never claimed that the phone calls at home were in any way intimidating, and she admitted that her supervisor never made sexually explicit remarks or innuendoes. She further admitted that the shirttucking incident occurred on a day when the air conditions was broken and she came into her supervisor’s office unexpectedly. The court found the knee and hem touching incidents to be the most serious. However, because each incident was only momentary and was unaccompanied by any sexual advances or inappropriate remarks, the court found the supervisor’s conduct did not create an actionable hostile work environment.

Pervasiveness: How many incidents is enough?

As can be expected, there is no predetermined number of allegedly harassing incidents that automatically creates a hostile work environment. Generally, when events are concentrated over a finite period of time, the employee’s claim is stronger than when events are scattered over a longer period of months or even years. But as with all good general rules, there are exceptions. In some situations, offensive comments made three times a month together with several discrete acts may be sufficient for a plaintiff’s hostile work environment claim to survive an employer’s motion to dismiss. See, e.g., Santana v. Westaff, Inc., 2003 U.S. Dist. LEXIS 8146 (D. Or., May 5, 2003). Alice Santana, the only Hispanic individual at the temporary staffing agency where she worked, brought a race and national origin harassment suit against her former employer following her resignation. During the course of her employment, Santana heard comments she found to be offensive, such as, "There goes the Mexican attitude," or, "There goes the Mexican in you." When Hispanic customers inquired about employment, Santana was told, "Take care of your people." The comments continued even after Santana told her co-workers she found the comments offensive, and were sometimes made as often as three times per month. Santana also saw a group of Hispanic individuals being denied employment applications, and a comment was made about her turning the office into a "rancho."

The U.S. District Court for the District of Oregon found Santana’s evidence did not show any harassment severe enough that a jury could find in her favor based on severity alone because Santana presented no evidence of any improper conduct, physical actions, specific jokes or other poor treatment. However, the court found the comments were pervasive enough to allow Santana’s harassment claim to proceed to trial.

On the other hand, where the claim involves a relatively small number of incidents spread over a period of years, a hostile environment claim is less likely to succeed. Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002). Here the plaintiff, a corrections officer, alleged that over the course of four years, she was subjected to approximately twelve incidents of harassing behavior, four of which either had sexual overtones or were directed at her because she is a woman. Alfano claimed a supervisor told her she could not eat carrots, bananas, hot dogs or ice cream on the job because she did so "in a seductive manner." She also complained that a notice was posted that read, "Carrots will not be allowed in the visiting area due to Sgt. Alfano’s strong liking for them."

Alfano discovered a carrot and two potatoes in her locker that were arranged provocatively, and she also found a vulgar cartoon in her mailbox. A jury found in Alfano’s favor on her hostile work environment claim, but the Second Circuit Court of Appeals disagreed, finding insufficient evidence that any bias motivated the alleged incidents. It stated that while "[a] reasonable person could have found the carrot and cartoon incidents humiliating, and they were plainly offensive, . . . they were too few, too separate in time, and too mild . . . to create an abusive working environment."

Outliers: When Cases Defy Classification

Just when the categories laid out above begin to look convincing, cases arise that simply refuse to fall neatly on to the anticipated side of the line. Consider, for example, the case of Patricia Brooks, a telephone dispatcher for the City of San Mateo. Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000). Brooks sued the city following an incident of inappropriate touching. One evening a co-worker approached Brooks and put his hand on her stomach, telling her how soft and sexy it was. Later that same evening, the co-worker boxed Brooks in next to a communication console, forced his hand under her sweater and bra and fondled her breast. Brooks immediately reported the incident, and her coworker was eventually terminated.

This case seems to fall into the extreme half of the continuum. It possessed elements of intimate, forcible sexual touching, which would seem to increase the likelihood that Brooks would succeed in establishing an actionable hostile work environment claim. However, the Ninth Circuit Court of Appeals affirmed a lower court decision dismissing Brooks’ claim, finding "no reasonable woman in Brooks’ position would believe that [her co-worker’s] misconduct had permanently altered the terms or conditions of her employment."

There is no logical explanation for this outcome. Brooks is simply a reminder that regardless of the jurisdiction, it is difficult to predict how hostile work environment determinations will be made.


When faced with a harassment investigation or a complaint that has already been filed, remember to carefully consider all of the facts presented. Analyze the claim under several different lights:

  1. Did the incidents occur repeatedly over a concentrated period of time?
  2. Was the conduct explicitly motivated by the alleged victim’s sex, race, national origin or religion?
  3. Was sexual touching involved?
  4. Is the conduct both objectively and subjectively hostile?

Then remember that with harassment law there are no guarantees. Because for every case that turns out as predicted, there are cases like Brooks that push boundaries and increase uncertainties.

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