In a hostile environment it is not the intent but the effect that is important

by Michael Haberman on January 21, 2016 · 0 comments


A hostile environment decision was reversed by the Appeals court.

A hostile environment decision was reversed by the Appeals court.

In a case out of the Tenth Circuit court in Kansas we learn that courts are not to interpret the intent of what someone says but the effect of what they say to determine if a hostile environment exists.

What do you think?

If you were, or are, an African-American employee and you worked in an office where the following exchanges occurred, how would you react? The only African-American employee in a Kansas office was subjected to:

  • Her name was made fun of and how black parents named their kids was questioned
  • The term “nigga” was frequently used, though not directed at the employee
  • Other employees discussing bringing back lynching as a form of punishment, though the speaker pointed out he was not a racist
  • A supervisor telling everyone to refer to a visiting VP as “Massa”
  • Even a customer remarked about a picture of a garden that “It must have taken a lot of slaves to make it look that good.”
  • After complaining coworkers now warned of her presence and cautioned each other about speaking in front of her.

Before you make you judgment, here are some other facts about the employee. In her first year of employment the employee missed 34 days of work, 20 of which were unscheduled. According to the attorneys at Manatt that wrote about this case “During this time, [the employee]  had several unexcused absences and received a documented counseling, a verbal warning, and a final warning about her excessive absenteeism and how she violated company policy by texting in her absences.”

So what do you think happened? Naturally she filed a lawsuit harassment and retaliation. You might think this was an easy decision, but a federal judge dismissed her claim finding instead for the employer.

A reversal

On an appeal to the Tenth Circuit court the finding of the lower court was reversed. The Manatt attorneys wrote:

“The lower court ‘discounted the offensiveness of key elements of the conduct based on its conclusions regarding the ostensibly benign intent of the alleged harassing actors,’ the federal appellate panel wrote. ‘A district court’s assessment on summary judgment of whether a workplace environment is sufficiently polluted for purposes of a Section 1981 claim should not be based on whether an alleged harasser possessed the motivation or intent to cause discriminatory harm or offense.’”

The appellate court said “whether the alleged harasser’s purpose or intent was to do harm … is legally immaterial. The important question is whether the repeated utterance of this term [nigga] had the effect of contributing to the creation of a racially hostile work environment.”

Legal versus HR interpretation

In the analysis of this case there are a good number of legal interpretations talking about intent and hostile environment. The ruling was affirmed on the basis of legal definitions, as was the dismissal of the employee’s claim of retaliation, but from an HR standpoint it is my opinion that it should never have gotten to that stage. Although a supervisor and a couple of employees received one counseling session, HR for this company should have been much more aware of the difficult situation they had in that office. Closer monitoring, counseling and even discipline might have prevented this from becoming a federal legal case.

Perhaps it is because I work in the South that I am much more sensitive to the terms and statements used in this office that I was surprised by the initial judge’s determination. In my HR opinion there was a hostile environment and that could have been a contributory reason for the excessive absenteeism. I think HR bungled this one.

What do you think?


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