New Federal Standard for Hostile Work Environment

In what may prove to be a landmark federal ruling, the 2nd Circuit Court of Appeals has ruled that sex-specific insults and comments may create a hostile work environment for a female employee, even if the abuser is an “equal opportunity harasser.”

In the past, federal courts have ruled that a supervisor who was rude, abusive and even threatening to employees of both sexes and all races was not guilty of discrimination, or of creating a hostile work environment. Managers who screamed coerced and threatened employees frequently escaped legal repercussions because as an “equal opportunity harasser” they treated all employees equally badly.

From an HR standpoint, while screaming, verbal abuse, insults and even threats of bodily harm are very bad management, they do not necessarily constitute a hostile work environment. In order for a hostile work environment to exist, the actions must be discriminatory, meaning an employee in a protected group (race, color, religion, sex, national origin etc.) is the target of harassment because of his or her membership in that group.

The classic example is the female firefighter who found photos of naked women in her inbox every day for six months. She was the target of this behavior because she was female, and it was a hostile work environment. For the same reason, the African American factory worker who found a noose in his locker, was the victim of a hostile work environment. He was the target of such actions because of his race or color.

In the past, the courts have ruled that when all employees are treated badly, that is poor management but not a hostile work environment.

However, in Kaytor v. Electric Boat Corp., the court found that although supervisor Daniel McCarthy was an “equal opportunity harasser” who verbally abused employees of all races, colors and sexes, his sexual slurs and sexually charged remarks to his administrative assistant Sharon Kaytor were discriminatory, elevating the situation to a hostile work environment.

In 2004, while going through a divorce, Daniel McCarthy’s behavior towards his admin and others at Electric Boat Corp. changed. McCarthy made inappropriate and suggestive remarks to Kaytor about her body and her scent. When she rebuffed his advances, he repeatedly threatened to choke, kill or otherwise physically injure her – threats he also made against others in the office.

After Kaytor left work early one day for a gynecologist appointment, McCarthy made some particularly vile remarks. He also gave her a pussy willow plant for Administrative Assistants’ Day, with a sexually suggestive note. Kaytor told McCarthy that she was going to report the incident to HR, and he threatened to kill her.

When Kaytor followed through, the company illegally retaliated by transferring her to another engineer who reported directly to McCarthy, and treated her badly.

Initially, the lower court found that McCarthy was an “equal opportunity harasser” and that no reasonable jury would infer that these actions were taken against Kaytor due to her sex. In other words, as has happened so frequently in the past, McCarthy’s conduct was excused because he was crass, rude and abusive to all employees, not just female ones.

However, on appeal the 2^nd Circuit Court found that any rational jury would conclude from McCarthy’s sexual slurs that the threats and abuse were, in fact, due to her gender. The court also pointed out that a prior case had found that it would be a great injustice if a harasser could get away with sex discrimination and creating a hostile work environment, simply by occasionally harassing a male employee.

It remains to be seen whether this case will be taken to the Supreme Court, and how they might rule on it. For the present, employers should take pains to weed out abusive supervisors, whether their conduct is strictly illegal or not.