The 4th Circuit Court of Appeals, which has jurisdiction over North Carolina employers, just made it easier for employees to sue for having to work in a hostile environment.
The court said that unpleasant and offensive conduct aimed as one’s sex or race does not have to happen in the presence of the employee who winds up complaining. In fact, conduct witnessed by other employees, and not the employee who is suing, can be used as evidence that the environment was hostile.
The case opens up new opportunities for hostile environment lawsuits. Until now, employees bringing such lawsuits usually had to witness or experience the offensive conduct.
Recent case: Cynthia Ziskie worked as an air traffic controller for 23 years. After she did not succeed in getting a schedule shift she wanted, she filed a formal complaint with the Department of Transportation (DOT), alleging that she and other female air traffic controllers were subjected “to a continuing atmosphere of harassment and intimidation.”
According to Ziskie, the workplace included “profanity, sexual innuendos, mass flatulence, and other behaviors designed and intended to make female workers uncomfortable and ill at ease.”
The DOT investigated and concluded that, if there was harassment, it was of the equal opportunity type—with both men and women using profanity and offensive language. The trial court dismissed the case and Ziskie appealed.
Ziskie told the appeals court that she should have been able to introduce affidavits from other employees who described the environment and incidents that she herself had not experienced.
The 4th Circuit Court of Appeals agreed and sent the case back to trial. It said that evidence about how other employees were treated in the same workplace could be used to prove that the environment was sexually hostile. (Ziskie v. Mineta, No. 06-2060, 4th Cir., 2008)
Final note: While you don’t have to guarantee a perfectly civil work environment, there’s no compelling need to allow a frat-house environment, either.