You complain to your manager or to H.R., and what do they tell you? There’s no evidence that you are putting up with an illegal hostile work environment. But you are having trouble sleeping, you feel sick when you think about work, and even though you try not to you spend most of your time worrying about work, you think about little else.
How can your boss or H.R. excuse this? How can they possibly claim that nothing is going on?
Acme Markets said that Gloria Nieves was just complaining about good old fashioned teasing among co-workers. Some of it may have been insensitive, but Acme claimed that no one thing that happened to Gloria at the deli where she worked amounted to illegal harassment. But Gloria knew differently. She took Acme to court, where the court said even when single incidents don’t amount to illegal harassment, courts consider everything that happened to Gloria “as a whole” before deciding whether or not the company’s treatment of her added up to illegal harassment.
Find out whether Gloria won or lost after the court ruled that Acme should have “viewed as a whole” all the harassment that Gloria was putting up with.
The Gradual Harassment of Gloria Nieves
Gloria is Hispanic and born in Colombia. She began working part-time at Acme Deli in Middleton, Delaware in November of 2001. When Acme opened a larger store in Middleton two years later Gloria applied for a full time “senior night associate” position in the new store. Based on her seniority Gloria got the full time job working nights at the new location.
The hostility toward Gloria began as soon as she began working full time at the new store. She was told that she wasn’t allowed to speak Spanish to Spanish speaking customers. Her manager wondered out loud how Gloria could have possibly won the full time position because her “English isn’t good.” Another time a co-worker questioned whether Gloria had a “green card”. Gloria was called “stupid” when she asked questions and was treated like she had never been educated. When the topic of drugs came up, a co-worker would say “ask Gloria because she’s from Columbia.” When Gloria’s husband Emilio came to the store she had to listen to them say “de plane, de plane,” referencing a Hispanic character from the show television show “Fantasy Island.”
Gloria complained to management and to H.R. about all of this, of course. Management’s response was to simply tell Gloria “Don’t worry.” In the eyes of management none of this harassing conduct amounted to an illegal hostile work environment. It was all just good fun and joking around. Her complaints were not taken seriously at all. For instance, once when Gloria made a complaint to a supervisor, the supervisor simply waited until Gloria turned her back to walk away, and then he started laughing at her — and encouraged Gloria’s co-workers to do the same. Gloria was even called “Chihuahua” from the Taco Bell commercials.
Gloria began to cry frequently because of the workplace harassment. The Acme Deli, however, blamed her crying on “marital problems.” Gloria finally went from work to the emergency room due to chest pain, caused by the hostile workplace she had endured for so long.
Instead of taking responsibility for Gloria’s deteriorated physical condition, Acme Deli accused her faking her illness. The next week the Deli Manager suspended Gloria. Gloria filed harassment claims with the EEOC based on her national origin.
Acme Deli responded to Gloria’s EEOC complaint by arguing that none of the conduct Gloria complained of was “severe enough” to be considered unlawful.
The EEOC sent a letter to Acme stating that it’s investigation indicated that Acme had engaged in discriminatory practices and violated employment laws. After the EEOC scheduled a conciliation (settlement) meeting, Gloria filed suit in court.
How Did Gloria’s Harassment Case Against Her Employer End?
In court Acme against argued that Gloria’s suit should be dismissed because the harassment Gloria suffered was not “severe or persuasive”. But the court applied a test used by the Supreme Court, call the “totality of thecircumstances test”. Under this test:
“workplace conduct is not measured in isolation; instead, whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, …a mere offensive utterance [or] whether it unreasonably interferes with an employee’s work performance.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001).
Acme claimed that Gloria had only identified isolated incidents, while Gloria argued that a set of multiple incidents makes a pattern, and an illegal pattern at that. The court reviewed all the incidents, and found that “while each act/comment, in isolation, might be perceived as insensitive, taken as a whole, a reasonable jury might conclude that the acts/comments were motivated by adiscriminatory purpose.” ( Nieves v. Acme Markets Inc., D. Del., March 7, 2008)
The Undercover Lawyer’s Take-Away Tips for Fighting Workplace Harassment:
The court in Gloria’s case rejected Acme’s argument that the harassment and discrimination was not severe enough to be illegal. Crucial pieces of evidence for Gloria included the fact that some incidents happened more than once. For instance, she was repeatedly called “Chihuahua” and her husband was taunted with “de plane, de plane,” when even he came to the store. Repetition turns insensitive actions into illegal harassment. This is a huge key to making use of this case yourself. When you allege repetition of the same harassing acts, the court should use the “totality of thecircumstances ” test and consider everything you’ve alleged “taken as a whole.” Your employer, of course, will NOT want the court to consider your allegations of hostile work environment “as a whole.”
3 Quick Take-Away Tips
1. Say Specifically “This is not just teasing, it’s harassment”
Your boss, or your boss’s boss, may want to wave off your complaint as nothing serious. If you state specifically that “this is not just teasing, it is serious harassment”, then your boss must take you seriously, or face the consequences in court of ignoring your specific complaint.
2. Keep a Timeline of the Company’s Response
Take it from me, someone whose “day job” is training managers: your manager is suppose to take immediate action to stop the harassment. Once the harassment is stopped, they should investigate your allegations. I underline should because it’s not a law, it’s just smart management. I’ve learned, however, that there are lots of dumb managers out there. So start a timeline with the dates of the incidents you told your boss about, the date you reported the harassment, the date the boss takes action, the date(s) of theinvestigation, and the conclusion (if any). And by the way, your boss saying “I want everyone to act like adults” is not enough.3. Ask For a Copy of Your Employer’s Anti-Harassment Policy
One well know H.R. blogger advises employers to have an anti-harassment policy that is more strict that the law requires. In her view, if an employer has to argue that what an employee suffered through was not “severe enough” or “pervasive enough” to equal illegal workplace harassment, then that employer is going to lose. In court. So when you report harassment, ask for the company’s anti-harassment policy, both so you can evaluate how strict it is, and more importantly, to send a message to your boss that YOU are going to hold HIM/HER accountable to living up to that policy.
Have you had a boss claim that what felt like harassment to you was “merely” teasing? If you have, or are currently dealing with this you can get even more tools to fight back against workplace harassment and win with the Undercover Lawyer’s electronic book “Work Laws Exposed”.