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Can you sue for harassment if no one actually harasses you? 5th Circuit opens the door a crack

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in Discrimination and Harassment,Human Resources

Here’s a new worry for employers: More and more employees who aren’t being directly targeted for har­­­­­­­ass­­ment are suing anyway. They claim that the fact that others may be experiencing sexual, racial or other forms of harassment means that they, in ­effect, are also victims.

Some of those claims actually succeed. And even the ones that fail can raise the threat of further litigation.

Recent case: Rubin Hernandez and several other employees who worked at Yellow Transportation’s Dallas terminal sued over an alleg­edly hostile work environment. They also claimed they were retali­ated against after they picketed in protest of working conditions. Two of Hernandez’s co-workers are Hispanic; one is white.

The two Hispanic employees argued that they had observed or heard about workplace harassment aimed at black employees. They said it created a hostile environment for Hispanic employees, too. In other words, their lawyers argued that if blacks found the environment hostile, Hispanic employees would, too.

The 5th Circuit Court of Appeals sidestepped that issue by ruling that the black harassment the Hispanic employees complained about wasn’t intense or frequent enough to constitute racial harassment based on being black. There was no need to decide whether that same conduct created a hostile environment for Hispanics.

However, the Hispanic employees also urged the court to consider alleged nonrace-related harassment. The weight of the additional harassment, they argued, created a hostile work environment.

The 5th Circuit concluded that under some circumstances, employees can add together race-based incidents and nonrace-based incidents. How­­­­­­ever, in this case there was no evidence that the other alleged harassment had any relationship to the racial incidents. The court used as an example a case in which a supervisor constantly called a subordinate an “Arab” and also regularly banged on the employee’s glass partition to annoy him. The court said the glass banging was an extension of racial harassment, not something entirely separate.

The court also rejected the white employee’s claims of a hostile work environment because he did not have a “personal” relationship with a black employee. He was merely a co-worker.

Finally, the court dismissed the white employee’s claim he had been given a heavier workload in retaliation for picketing against perceived racial harassment at the facility. The court concluded the employee hadn’t proved that his workload actually increased in this case. (Hernandez, et al., v. Yellow Transportation, No. 09-10183, 5th Cir., 2011)

Final note: While the employer won in this case, the 5th Circuit Court of Appeals’ opinion gives workers’ lawyers plenty of fodder for future cases. No doubt clever attorneys will look for cases to test the court’s suggestions that it may allow more employees to sue over the treatment of fellow employees who belong to a different protected class.

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