Hostile Work Environment, Retaliation, Individual Liability

Hostile work environment, Retaliation, Individual Liability

The United States Supreme Court, in National R. R. Passenger Corp. v. Morgan, 122 S.Ct. 2061, 2071-73 (2002), reports hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 348-349 (3d ed. 1996) (hereinafter Lindemann) ("The repeated nature of the harassment or its intensity constitutes evidence that management knew or should have known of its existence").

The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) ("As we pointed out in Meritor [Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986),] `mere utterance of an ... epithet which engenders offensive feelings in a employee,' ibid. (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII"). Such claims are based on the cumulative affect of individual acts.

The court goes on to report "We have repeatedly made clear that although [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition `is not limited to "economic" or "tangible" discrimination,' " Harris, [510 U. S., at, 21] (quoting Meritor Savings Bank, FSB v. Vinson, [477 U. S.,] at 64), and that it covers more than `terms' and `conditions' in the narrow contractual sense." Faragher v. Boca Raton, 524 U.S. 775, 786 (1998) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78 (1998)).

As the Court stated in Harris, "the phrase `terms, conditions, or privileges of employment' [of 42 U. S. C. §2000e-2(a)(1)] evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women' in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." 510 U.S. at 21 (some internal quotation marks omitted) (quoting Meritor, 477 U.S. at 64, in turn quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978)). "Workplace conduct is not measured in isolation .... "Clark County School Dist. v. Breeden, 532 U.S. 268, 270 (2001) (per curiam).

Thus, "when the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris, 510 U.S. at 21 (internal citations omitted).

The court goes on to say, “In determining whether an actionable hostile work environment claim exists, we look to "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. " A hostile work environment claim is comprised of a series of separate acts that collectively constitute one "unlawful employment practice." 42 U. S. C. §2000e-5(e)(1).

In Whittaker v. Northern Illinois University et al. (7th Cir. 2005) this court reports pursuant to Title VII, “it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Accordingly, this statute prohibits employers from “requiring people to work in a discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Shanoff v. Ill. Dep’t of Human Servs., 258 F.3d 696, 701 (7th Cir. 2001).

To prevail on his hostile work environment claim, plaintiff must establish that: “(1) he was subjected to unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the conduct was severe or pervasive enough to create a hostile work environment; (3) the conduct was directed at him because of his sex; and (4) there is a basis for employer liability.” Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 505 (7th Cir. 2004).

To prove “hostile work environment,” the alleged harassment must be “both subjectively and objectively so severe or pervasive as to alter the conditions of her employment and create an abusive working environment.” Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th
Cir. 2004). “In determining whether the environment was objectively hostile, a court must consider all of the circumstances, including the frequency and severity of conduct, whether it is threatening and/or humiliating or merely offensive, and whether the harassment unreasonably interferes with an employee’s work.” Id. at 975-76. Indeed, the threshold for plaintiffs is high, as “[t]he workplace that is actionable is one that is ‘hellish.’ ” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997).

It is well settled that “relatively isolated instances of non-severe misconduct will not support a claim of a hostile environment.” Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993), and Wolf v. Northwest Ind. Symphony Society, 250 F.3d 1136, 1144 (7th Cir. 2001)
Title VII also prohibits employers from treating employees differently on the basis of sex. See 42 U.S.C. § 2000e- 2(a)(1). To establish a claim of sex discrimination, or disparate treatment, a plaintiff can proceed either directly, by presenting direct and/or circumstantial evidence of the employer’s discriminatory intent, or indirectly, through the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Wyninger, 361 F.3d at 978. The McDonnell Douglas burden-shifting approach can also be used to establish indirectly a claim of retaliation 42 U.S.C. § 2000e-3(a) provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” in violation of 42 U.S.C. § 2000e-3(a).1 See Wyninger v. New
Venture, 361 F.3d 965, 981 (7th Cir. 2004).

To establish a claim of retaliation under the indirect method of McDonnell Douglas, a plaintiff must establish that “(1) after lodging a complaint about discrimination, (2) only he, and not any otherwise similarly situated employee who did not complain, was (3) subjected to an adverse employment action even though (4) he was performing his job in a satisfactory manner.” Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002) “Typically, adverse employment actions are economic injuries.” Markel v. Board of Regents of Univ. of Wis. Sys., 276 F.3d 906, 911 (7th Cir.2002). Of course, “adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (quoting Collins v. State of Illinois, 830 F.2d 692, 703 (7th Cir. 1987)). “[T]he adverse action must materially alter the terms and conditions of employment.” Stutler v. Ill. Dept. of Corr., 263 F.3d 698, 703 (7th Cir. 2001).

Tangible job consequences are adverse employment actions actionable under Title VII.” Longstreet v. Ill. Dep’t of Corrections, 276 F.3d 379, 384 (7th Cir. 2002)

Standards for actionable adverse action for discrimination claims under § 2000e-2(a) and retaliation claims under § 2000e-3(a) are not identical. “Section 2000e-3(a) is ‘broader’ than § 2000e-2(a) in the sense that retaliation may take so many forms, while § 2000e-2(a) is limited to discrimination ‘with respect to [the worker’s] compensation, terms, conditions, or privileges of employment.’ ” Washington v. Ill. Dep’t of Revenue, No. 03-3818, slip op. at 3 (7th Cir. August 22, 2005); see also Herrnreiter, 315 F.3d 742, 746 (7th Cir. 2002) (recognizing that, to be actionable under Title VII, retaliation need not involve “an actual employment action”). In the retaliation context, an employer’s action will be actionable under § 2000e-3(a) if it would have “dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Washington, slip op. at 7.

28 U. S. C. §1367

Title VII of the Civil Rights Act of 1964 makes it unlawful for "an employer ... to discriminate against any [employee] with respect to ... sex," 42 U. S. C. §2000e-2(a)(1), and defines "employer" as "a person ... who has fifteen or more employees," §2000e(b). The Act's jurisdictional provision empowers federal courts to adjudicate civil actions "brought under" Title VII. §2000e-5(f)(3). Title VII actions also fit within the Judicial Code's grant of subject-matter jurisdiction to federal courts over actions "arising under" federal law. 28 U. S. C. §1331. Because Congress has also authorized federal courts to exercise "supplemental" jurisdiction over state-law claims linked to a federal claim, 28 U. S. C. §1367, Title VII plaintiffs may pursue complete relief in federal court. Arbaugh v. Y & H Corp. (2006) Therefore, under 28 U. S. C. §1367, federal courts may exercise "supplemental" jurisdiction over state-law claims linked to a claim based on federal law. Plaintiffs suing under Title VII may avail themselves of the opportunity §1367 provides to pursue complete relief in a federal-court lawsuit. Arbaugh v. Y&H Corp., U.S. 380 F.3d 219 (2006)

For example, the Illinois Human Rights Act states that it is a "civil rights violation" for any employer or employee "to engage in sexual harassment." 775 ILCS 5/2--102(D) (West 1992)). The Act defines sexual harassment as follows: "…any conduct of a sexual nature when submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment." 775 ILCS 5/2--101(E) (West 1992)). 775 ILCS 5/2-101 (E) Sexual Harassment. “Sexual Harassment means … any conduct of a sexual nature... (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.

The Illinois Supreme Court has stated that in analyzing employment discrimination cases under the Human Rights Act, Illinois has adopted the "analytical framework" set forth by the United States Supreme Court decisions addressing claims brought under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act. Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 178, 545 N.E.2d 684 (1989).

The Seventh Circuit Court of Appeals has recognized that intentional discrimination can be shown by one of two methods: (1) direct evidence or (2) indirect evidence. The analytical framework for proof of intentional discrimination through indirect evidence established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and adopted by the Illinois Supreme Court in Zaderak v. Illinois Human Rights Comm’n, 131 Ill. App. 3d 172 (1989), which involves a three-part analysis. First, the plaintiff must establish by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, a rebuttable presumption arises that the employer unlawfully discriminated against the employee.

The employer must articulate, but not prove, a legitimate, nondiscriminatory reason for its decision to rebut the presumption. The petitioner must then prove by a preponderance of the evidence that the employer's articulated reason was merely a pretext for unlawful discrimination. Zaderaka 131 Ill. App. 3d at 179. A prima facie case for unlawful age discrimination is established by showing by a preponderance of the evidence that: (1) the complainant is a member of a protected class (age 40 or over); (2) the complainant was doing the job well enough to meet his employer's legitimate expectations; (3) he was discharged or demoted; and (4) similarly-situated younger employees were treated materially better. Illinois J. Livingston Co. v. Human Rights Comm'n, 302 Ill. App. 3d 141, 153, 794 N.E.2d 797 (1998).
Intentional discrimination may also be shown by direct evidence pursuant to Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994). Under this approach, a petitioner may establish his case with either direct or circumstantial evidence. Troupe, 20 F.3d at 735-36.

The Troupe court recognized three types of circumstantial evidence that a petitioner could utilize to satisfy his burden of proof: (1) evidence of "suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn"; (2) evidence "whether or not rigorously statistical, that employees similarly situated to the plaintiff other than in the characteristic on which an employer is forbidden to base a difference in treatment received systematically better treatment"; and (3) evidence "the [petitioner] was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is unworthy of belief, a mere pretext for discrimination." Troupe, 20 F.3d at 736.

To establish a prima facie case of discrimination, the claimant must show by a preponderance of evidence that: (1) he is a member of a protected class; (2) he was performing satisfactorily; (3) he was discharged despite the adequacy of her work; and (4) a similarly situated employee who was not a member of the protected group was not discharged. Marinelli, 262 Ill. App. 3d at 253. Once a claimant satisfies a prima facie case, the employer must articulate, not prove, a legitimate, nondiscriminatory basis for its action. Alcequeire v. Human Rights Comm'n, 292 Ill. App. 3d 515, 685 N.E.2d 974 (1997).