Conduct Not Directed at Plaintiff May Support Claim of Hostile Environment

In order to successfully support a claim of hostile work environment under Title VII, an employee must show that the offending conduct was “sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.”  One federal appellate court recently held that offensive conduct not witnessed by an individual may still contribute to that individual’s claim that a workplace environment was hostile, and should be admitted as part of the employee’s Title VII lawsuit.  Ziskie v. Mineta, No. 06-2060 (4th Circ. November 14, 2008).

Cynthia Ziskie worked as an air traffic controller (ATC) at the FAA’s traffic control center in Leesburg Virginia from 1982 until her retirement in 2005.  From 1991 until 2002, Ziskie worked part-time, working only on Monday, Tuesday, and Wednesday each week.  In April 2002, Ziskie was informed that part-time work would no longer be available at her location.  She asked for an extension of her part-time schedule in order to make childcare arrangements, but that request was denied.  Subsequently, Ziskie called in sick every Thursday and Friday for eight straight weeks and, as a result, was reprimanded for abuse of sick leave.  Part-time schedules ultimately were reinstated, with Ziskie having worked only one full week during the time in which part-time work was unavailable.

In May 2002, shortly after the part-time schedules were withdrawn, Ziskie filed a formal complaint with the Department of Transportation’s Civil Rights Office.  She alleged that she and other female employees were “being subjected to a continuing atmosphere of harassment and intimidation” and that she was being retaliated against because she had spoken up against the treatment.  Ziskie claimed about an “unremitting use of profanity, sexual innuendos, mass flatulence, and other behaviors designed and intended to make female workers uncomfortable and ill at ease.”  Ziskie’s specific complaints included a number of sexist comments directed to other employees or not directed to anyone in particular.  In addition, she claimed that she was treated with hostility by a number of her male co-workers, especially after she informed them that she kept a diary of the workplace comments that she found to be offensive.

In July 2002, after an investigation, the DOT’s Civil Rights Office made a formal finding that no discrimination had occurred, and determined that both males and females at the Center used profanity and other offensive language.  In October 2005, Ziskie filed a Title VII action in federal court.  The court granted summary judgment for the defendants on the hostile environment claim.  Further, the court disregarded affidavits submitted by Ziskie’s co-workers, finding that the offensive language and conduct described in the affidavits – but not experienced by Ziskie – had no bearing on Ziskie’s Title VII claim.

On appeal, the Fourth Circuit reversed summary judgment on the hostile environment claim and remanded the case back to the district court for assessment of the proffered affidavits, because “evidence about how other employees were treated in the same workplace can be probative of whether the environment was indeed a sexually hostile one, even if the plaintiff did not witness the conduct herself.”  Of interest, however, is the fact that while it remanded the case, the court also stated that the evidence submitted by the plaintiff at the summary judgment level indicated a “weakness” in Ziskie’s claim.  Specifically, the court pointed out that to succeed at trial, Ziskie would have to prove that the alleged harassment was because of her gender, and that the conduct was severe or pervasive enough to alter the conditions of her work.  The court then pointed out that harassment due to personality conflicts is not sufficient to support a claim of sexually hostile work environment, nor is a case based simply upon crude or boorish behavior.

The Fourth Circuit’s position on this matter is summed up in one cogent sentence: “Our cases have sought to distinguish between those situations that indeed present serious impediments to minority and female workers and those situations when human nature simply is not at its best.”  However, employers should not view this statement as an invitation to classify all discrimination complaints as personality conflicts.  To avoid legal liability, employers should assure that complaints of harassment and discrimination are promptly and thoroughly investigated, and that problematic situations are dealt with appropriately.  In addition, employers should not assume that actions that took place outside of the presence of a complaining employee will be excluded in a subsequent Title VII action filed by that employee.