Hostile Work Environment Created by Co-Worker Not Imputable to Entity Employer

In order to hold an employer liable for a hostile work environment, a plaintiff needs to establish two elements:

  1. The existence of a hostile work environment (i.e., sufficiently “hostile” conduct connected a protected characteristic); and
  2. A specific basis for imputing the hostile work environment to the employer (vicarious liability).

A recent case, Ward v. Shaddock, No. 14-CV-7660 (KMK), 2016 WL 4371752 (S.D.N.Y. Aug. 11, 2016), illustrates that even where a “hostile work environment” exists, a plaintiff’s case will be dismissed (as against an entity employer) where there is no basis for imputing liability.

In Ward, the court, inter alia, dismissed plaintiff’s race-based hostile work environment claim against his employer (the New York State Department of Transportation) based on racial harassment perpetrated by a co-worker (Shaddock).

Existence of a Hostile Work Environment

The court found that plaintiff met the first element. The complaint “alleges a pattern of racial slurs and derogatory remarks by Shaddock over the course of at least seven years” including that he “regularly expressed contempt for African Americans generally and the African-American workers under his supervision.”

“While Defendants argue that there is no allegation that any of th[e] alleged [epithets or jokes] occurred in [P]laintiffs’ presence or that any of it was directed to them personally, the mere fact that [a] plaintiff was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim.”

It also didn’t matter that the complaint did not allege that the racial slurs and racially demeaning language was “coupled with threats of physical violence”, since “it is well settled that [w]hether the alleged conduct is physically threatening is just one of the factors courts look to in determining whether an environment is hostile.”

The court concluded that the complaint “alleged various acts by Shaddock that a reasonable employee could perceive as racially hostile or abusive.”

Vicarious Liability

Although plaintiffs sufficiently alleged the existence of a hostile work environment, the court dismissed their claim against the DOT. The court summarized the law in light of the Supreme Court’s decision in Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013):

Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. For an employer to be held liable for a hostile work environment, the plaintiff must demonstrate either that a supervisor used his or her authority to further the creation of a discriminatorily abusive working environment, or that the employer knew or reasonably should have known about harassment by non-supervisory co-workers, yet failed to take appropriate remedial action. Where the offensive behavior occurs at the hands of a co-worker, the employer is liable only if it was negligent in controlling working conditions, such as where it did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed. On the other hand, [w]here an employee is harassed by a supervisor, an employer may be vicariously liable for the creation and persistence of a hostile work environment. In this context, a “supervisor” is one who is empowered by the employer to take tangible employment actions against the victim. A tangible employment action involves a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Applying the law, the court held that Shaddock was not Ward’s “supervisor” for purposes of vicarious liability, where plaintiffs’ assertions “fail to suggest that Shaddock had the power to (or did) hire, fire, or in any other way effect a tangible change in [Ward’s] terms or conditions of employment.” Plaintiffs’ assertion “that Shaddock was responsible for Plaintiffs’ day-to-day work assignments and allocation of equipment falls well below” the necessary threshold.

Nor could plaintiffs prevail on a negligence theory, in that there were no “allegations that DOT did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed”; rather, the complaint “alleges that Shaddock was disciplined and relieved of his position … after Ward filed his internal complaint.”