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A recent decision by the U.S. Court of Appeals for the Sixth Circuit (which covers Kentucky, Michigan, Ohio and Tennessee) highlights the danger of a solitary “serial harasser” whose conduct goes unchecked.  In Armstrong v. Whirlpool Corp., the Court allowed claims by three African American employees to proceed even though their claims were primarily based on remarks by a single employee (who, incidentally, happened to also be a union steward).  The plaintiffs claimed the racial slurs were “an ongoing thing every day.”  Although they complained, the comments were allowed to continue throughout the harassing employee’s thirteen year tenure with the company.

The trial court initially dismissed the plaintiffs’ claims because the court felt the harassment was not severe and pervasive enough to rise to the level of a “hostile work environment” under Title VII.  To establish such a claim, a plaintiff must demonstrate (1) he or she was a member of the protected class, (2) he or she was subjected to unwelcome harassment, (3) the harassment was based on race, (4) the harassment unreasonably interfered with his or her work performance by creating an intimidating, hostile, or offensive work environment, and (5) the employer was liable.  In this case the issue was whether a single harasser could create an “intimidating, hostile, or offensive work environment” which interfered with the plaintiffs’ work performance.  The Sixth Circuit answered “Yes.”

As the U.S. Supreme Court previously noted, “Mere utterance of an epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII.” Harris v. Forklift Sys. Thus, generally, hostile work environment claims, particularly those not based on conduct by supervisors, require evidence of several incidents of offensive conduct by several coworkers.  

However, in this case, the Court of Appeals described the incidents as “serial harassment” and held that “more weight should be given to acts committed by a serial harasser if the plaintiff knows that the same individual committed offending acts in the past.” The Court explained, “This is because a serial harasser left free to harass again leaves the impression that acts of harassment are tolerated at the workplace.”

With this case as an example, supervisors and managers should be reminded that even in a positive work environment, one bad apple is enough to cause liability.  Review your policies and training to ensure everyone in your business knows how tough a standard the courts have imposed. 

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.