Title VII Race/Sex-Based Hostile Work Environment Claims Dismissed; Single Incident Held Insufficient

In Howard v. State of Arizona et al, 2024 WL 1619400 (D.Ariz. April 15, 2024), the court granted defendant’s motion to dismiss plaintiff’s hostile work environment asserted under Title VII of the Civil Rights Act of 1964.

From the decision:

Title VII is not meant as “a general civility code” and “sporadic use of abusive language, gender-related jokes, and occasional teasing” are not sufficient to establish a hostile work environment claim. Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 648 (9th Cir. 2021). This standard has precluded claims involving offensive conduct that did not permeate the workplace. For example, a female employee alleged a hostile work environment claim based on another employee referring “to women generally as ‘bitches’ and ‘histrionics.’ ” Id. (quoting Kortan v. California Youth Auth., 217 F.3d 1104, 1107 (9th Cir. 2000)). That was not sufficient. In another case, a female Chinese American alleged her coworkers referred to her as “China woman” and she saw them “pulling their eyes back with their fingers in an attempt to imitate or mock the appearance of Asians.” Id. (citing Manatt v. Bank of America, NA, 339 F.3d 792, 795 (9th Cir. 2003)). Again, that was not severe or pervasive enough to support a hostile work environment claim.

In this case, Howard bases her hostile work environment claim on the single incident involving her colleague. A single incident might be sufficient to establish a hostile work environment claim because “frequency of the discriminatory conduct is only one factor in the analysis.” Fried, 18 F.4th at 648. But a single incident will suffice only when it is “extremely severe.” Id. For example, a plaintiff raped by a business colleague was a sufficiently severe single incident to support a hostile work environment claim. Little v. Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2002). But an incident where a coworker “forced his hand underneath [the plaintiff’s] sweater and bra to fondle her bare breast” was not a sufficiently severe single incident. Brooks v. City of San Mateo, 229 F.3d 917, 921 (9th Cir. 2000).

The incident with Howard’s colleague involved statements that the colleague thought Howard was a “white girl,” but in-person Howard appeared “brown.” The colleague also stated Howard was “an imbecile…small minded…unwomanly…[and] no one likes [her].” (Doc. 1 at 3). Despite hearing those comments, Howard’s supervisor did not take any action other than requiring Howard use a different method than other employees when Howard needed time off work. While offensive, the comments by the colleague and the failure by the supervisor to intervene were not sufficiently severe to state a claim for hostile work environment. Howard has not cited any authority recognizing a hostile work environment claim based on statements or actions such as these. The comments and behavior alleged in the complaint fall short of the “extremely severe” threshold.

However, the court dismissed the claim with leave to amend, noting that if plaintiff chooses to amend, she “must allege additional facts establishing the single incident with her colleague rises to an actionable level or Howard must allege other incidents in the workplace showing she was subjected to ‘severe or pervasive’ conduct that ‘alter[ed] the conditions of [her] employment.’”

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