Today’s post discusses an interesting case brought in Alabama under a racial harassment or hostile work environment case. This case is Adams v. Austal, U.S.A., LLC and the Eleventh Circuit’s appellate court’s decision is available here. The appeal deals with whether an employee may rely on evidence that the workplace was objectively hostile that he or she did not personally observe.
Hostile work environment in race discrimination lawsuits
Among other elements, when an employee brings a claim of unlawful harassment or a hostile work environment under race, sex, or another unlawful basis, that employee must show the workplace is both subjectively and objectively offensive. A workplace is subjectively offensive when the employee himself or herself found the workplace offensive. A workplace is objectively offensive when the same environment would offend a reasonable person.
This objective test is usually where the adversity exists between plaintiff and defendant. It is easier to prove that a random, reasonable person would not be offended than to disprove the employee’s assertion.
It is easier for the employer to prevail on the objective test for a couple reasons. First, the reasonable person is a mythological identity. No juror really knows what that means and it allows jurors to substitute their own judgment for that of the plaintiff. Second, the reasonable person standard permits courts to create legal rules about what a reasonable person would find, well, reasonable. That allows employers to attack the objective standard as a legal question rather than a factual question and defeat plaintiffs’ claims before trial. These tests are at issue in this case.
These are the facts, described by the appellate opinion in a light most favorable to the plaintiffs. Austal operates a shipyard in Mobile, Alabama. The employees alleged racist graffiti appeared in the men’s restrooms in the shipyard directed towards black employees. The employees also allege several nooses were found around the workplace. Several white employees wore confederate flags and both supervisors and coworkers called the employees names various offensive names.
A key issue in the suit was whether each of the multiple black employees had experienced the same degree and frequency of racism in the workplace. They worked in different departments for different supervisors and some even employed at different times. The employer moved for summary judgment on the objective offensiveness element, asserting that a reasonable jury would not find the conduct sufficiently offensive, nor would a reasonable person have found the workplace hostile. The trial court agreed to thirteen plaintiffs and dismissed their claims. These plaintiffs appealed.
In addition to this issue, the trial court also ruled in two cases that went to the jury that those plaintiffs could not present evidence of a hostile work environment that the employees did not personally observe as evidence under the subjective test. They too appealed their verdicts.
The Legal Issues
The appellate court addressed both sets of plaintiffs’ appeals. First, the court addressed whether the trial court had appropriately dismissed the claims of employees based on the trial court’s determination that the workplace was objectively offensive. Second, the court addressed whether the trial court erred in ruling that plaintiffs could not present evidence of an objective hostility that the plaintiffs did not experience.
The plaintiffs arguments are deeper than the objective hostility issue but it is the focus of their arguments. Additionally, to keep the analysis reasonably brief, I will also consolidate the court’s opinion to its key points. The thrust of the court’s opinion on the issue is that the trial court appropriately excluded evidence of hostility that the employees did not personally know about at the time of employment.
The appellate court ruled that the court properly excluded evidence of hostility that the individual employees did not experience. The appellate court held that the objective test requires the jury to look at what information the plaintiff knew at the time the claims arose and whether a reasonable juror standing in the plaintiff’s shoes at that time would find it offensive. The employee could not have found the environment hostile on the basis of information not known at that time. Therefore neither could a reasonable jury.
The appellate court also addressed the trial court’s exclusion of the same evidence as proof of the subjective hostility. Trial courts have discretion to admit evidence of hostility not known to plaintiffs at the time their claims arose. The appellate court did not find the trial court abused that discretion by limiting the plaintiffs to evidence of their claims that arose directly from the conduct of their supervisors.
The appellate court’s decision makes sense. It is not great evidence to show that an employee felt harassed by conduct he or she did not experience or that a reasonable person in that employee’s position would have felt the workplace was hostile. However, evidence of other employees’ experiences may be admitted in proving that the employer’s anti-discrimination policy is ineffectual.
This case illustrates yet another hurdle that employees must overcome in proving a hostile work environment or harassment claim. This case may not directly affect Texas; but our state courts and federal courts under the Fifth Circuit should not be expected to deviate from this approach. Harassment claims are challenging because the courts look for a truly horrible environment as opposed to the random inappropriate event. If you are suffering from a hostile work environment, you need to talk to an employment attorney about your situation.