Skip to main content

Eighth Circuit's Elevated Standard to Establish a Severe or Pervasive Work Environment Under Title VII Dooms Employee's Hostile Work Environment Claim


Kemna-ASA Auto Plaza, Inc. v. Burns; et al - Eighth Circuit Court of Appeals


Facts:  Jennifer Paskert ("Paskert") was hired as a sales associate at Auto$mart, Inc. ("Auto Smart").  Auto Smart was part of a larger group of businesses operated by Kenneth Kemna ("Kemna").  During her time at Auto Smart, Paskert was supervised by Brent Burns ("Burns").  The evidence in the record established that Burns' behavior as a manager was volatile:  he frequently lost his temper; ridiculed and screamed at his employees; referred to female customers using derogatory names; threw objects in the office; remarked that he "never should have hired a woman"; wondered aloud if he could make Paskert cry; bragged about his sexual conquests; rubbed Paskert's shoulders; and indicated that if he was not married, he could "have" Paskert.

Paskert and another co-worker, James Bjorkland, reported the incidents to a director and supervising manager of Auto Smart.  When Burns was approached about having Paskert fired, Burns suggested she be retained but with a different job title and pay structure.  Paskert soon thereafter was offered a new payment plan and job title which she accepted.  Three days later, she was terminated for insubordination and for "refus[ing] to discuss what was bothering her on Friday, November 6th."

Paskert thereafter filed a complaint with the Iowa Civil Rights Commission alleging a hostile work environment created and maintained by Burns and a few others at Auto Smart.  After receiving her right to sue letter, Paskert filed suit based upon a claim for sex discrimination based on a hostile work environment and retaliation.  The district court granted the Defendants' motion for summary judgment and Paskert appealed.

Holding: (Note, this case brief only analyzed the hostile work environment portion of Paskert's claim.)

As readers might be aware, Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits sexual harassment that takes the form of a hostile work environment.  An employee may sue under Title VII if the harassment is "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.  Notably, while the United States Supreme Court's precedent is clear that "Title VII comes into play before the harassing conduct leads to a nervous breakdown", the Eighth Circuit's precedent has set a higher bar for conduct to be sufficiently severe or pervasive to trigger a Title VII violation.

Referring to prior caselaw, the Eighth Circuit has found that a supervisor sexually propositioning an employee, requesting an employee draw an image of a phallic symbol to demonstrate her qualification for a position, and incidental unwelcome sexual conduct did not establish actionable severe or pervasive conduct under Title VII.  Given the elevated standard to find actionable conduct under Title VII, the Court held that the conduct that Paskert was exposed to at Auto Smart did not create a hostile work environment.

Judgment:  The Eighth Circuit Court of Appeals affirmed summary judgment in favor of the Defendants on the grounds that the employee had failed to point to sufficient evidence in the record to establish she was subjected to "sufficiently severe or pervasive" conditions to alter the terms and conditions of her employment, such that she had no actionable hostile work environment claim under Title VII of the Civil Rights Act of 1964.

The Takeaway:  I will point out that the Court of Appeals recognized that while the behavior that Paskert was exposed to was inappropriate and should not be tolerated in the workplace, it was not nearly as severe or pervasive as the behavior that was found to be insufficient in prior caselaw.  Since those cases did not find more severe or pervasive conduct to be actionable under Title VII, that led to the holding that the workplace conduct that Paskert was exposed to also was not actionable under Title VII.  It goes without saying that it is unfortunate that Paskert experienced this conduct while at work...but this case serves as another reminder that just because you have a difficult, rude, obtuse, immature boss or supervisor, their poor conduct does not necessarily create a hostile work environment under Title VII.

Majority Opinion Judge:  Judge Grasz

Date:  February 13, 2020

Opinion:  https://cases.justia.com/federal/appellate-courts/ca8/18-3623/18-3623-2020-02-13.pdf?ts=1581611429

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more