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Two Important Cases Expand Scope of Evidence to Consider in Hostile Work Environment Claims

In order to succeed on a hostile work environment claim, an employee must establish that the harassing conduct was severe, pervasive, subjectively offensive, and objectively offensive. Employees must also prove that the conduct was directed at them because of their protected characteristic (e.g., race, age, gender, religion, etc.). Two recent cases expanded the scope of evidence employees may utilize to prove these claims.

CAN EMPLOYEES RELY ON CONDUCT DIRECTED AT OTHERS IN SUPPORT OF A HOSTILE WORK ENVIRONMENT / HARASSMENT CLAIM?

In Massachusetts: Yes. In 1995, a federal judge dropped the following in a footnote when addressing this question: “conduct which was not directed at the plaintiff . . . may not be evidence of hostile environment sexual harassment" is "simply wrong as a matter of law and common sense.” Ruffin v. State Street Bank and Trust Co., 908 F. Supp. 1019, 1036 n.28 (D. Mass. 1995). Footnotes are not exactly binding authority. Thankfully, on March 17, 2020 Judge Indira Talwani elevated that sentiment to its proper status, stating:

Defendant argues that Alvarez cannot show that the alleged conduct was sufficiently severe and pervasive to make out a claim because the alleged sexual conduct and statements were directed at other employees and in any event were not severe or pervasive.

The court finds no requirement in the statutory scheme, case law, or common sense that would preclude a hostile work environment claim because sexual conduct and statements were directed at co-workers only. 

Romero v. McCormick & Schmick Rest. Corp., 2020 U.S. Dist. Lexis 45906 (D. Mass. March 17, 2020).

Lawyers have to make arguments. But I, for one, would prefer not to be the one claiming that someone can only be offended by conduct that is directed at them personally. Common sense says that’s nonsense, and so do Massachusetts courts.

CAN EMPLOYEES RELY ON CONDUCT THAT IS NOT TIED TO THEIR PROTECTED CHARACTERISTIC IN SUPPORT OF A HOSTILE WORK ENVIRONMENT / HARASSMENT CLAIM?

This one is not as clear in Massachusetts, but appears to be: Yes. In March of 2020, the Second Circuit Court of Appeals (not binding in Massachusetts, but persuasive) reversed a trial court’s decision not to consider evidence that was not tied to an individuals ethnicity when evaluating a hostile work environment claim. That employee appealed, and the court dropped this gem:

Rasmy contends that the District Court erred by disregarding all incidents of harassment that were not expressly discriminatory or not directed at Rasmy. Specifically, Rasmy maintains that the District Court refused to consider conduct not expressly based on race, religion, or national origin. Hence, Rasmy argues that it was error for the District Court to conclude as a matter of law that certain Defendants calling Rasmy a "rat" or allegedly filing false workplace complaints against him did not constitute discriminatory actions. We agree.

Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim.

Rasmy v. Marriott Int’l Inc., 952 F.3d 379 (2nd. Cir. 2020).

In so holding, the Court relied on an earlier Second Circuit opinion that stood for the same principle and which, importantly, has been cited approvingly by the First Circuit Court of Appeals, a court that provides binding authority to Massachusetts courts. Kaytor v. Elec. Boat. Corp., 609 F.3d 537, 546 (2nd Cir. 2010) approved by Roy v. Correct Care Sols., LLC, 914 F.3d 52, 64 (1st Cir. 2019).   

Hostile work environment claims use the word ‘environment’ because those claims are intended to address an employee’s entire environment, not just conduct that is personally directed at them and that is obviously connected to their protected characteristic.

Massachusetts employment attorney Benjamin Steffans has represented numerous individuals in workplace harassment and hostile work environment claims. If you believe you have been subjected to workplace harassment or a hostile work environment call us today for a free consultation.