How toxic is your workplace?

Hostile work environment claim must meet four requirements

As Missouri's employment laws continue their tendency to favor employees, guarding a business against claims of hostile work environment requires more than dragging out the single remaining company-owned VCR for an annual showing of that 15-year-old sexual harassment training video.

High-profile cases decided by Cole County juries this year highlighted publicly the importance of vigilance by employers and HR departments.

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Trav and Savanna Baxter

Former Missouri Veterans Commission employee Pat Rowe Kerr in July was awarded $2,875,000 in actual and punitive damages for her lawsuit against the commission and its director, claiming discrimination and harassment over her 2009 termination.

Former Jefferson City High School teacher Karen Ray in May garnered nearly $250,000 in damages when jurors determined the public school district subjected her to intolerable work conditions, leading to her resignation in 2013.

Jefferson City Public Schools settled without a trial a second sex and age discrimination lawsuit, this one with former JCHS teacher Laura Cooper, in September at a price tag of $450,000.

Such cases come at great expense to the entities left responsible for thousands of dollars in damages and legal fees - and both companies and individual supervisors may be held liable under Missouri law.

"The reality is employment law has become much more favorable to employees over the last 15 years," said Cathy Martin, an attorney at Newman, Comley & Ruth in Jefferson City, who focuses primarily on employment and corporate law. "In addition, there are no damage caps in Missouri."

Drawing the line

Most managers and HR professionals are aware it's illegal to take into account a person's race, color, age, religion, sex, national origin, ancestry or disability (and, at the federal level, sexual orientation) when hiring, firing or anything in between. To do so would be considered discrimination.

Harassment and hostile work environment policies rest on the same protected class structure laid out by discrimination law.

And not every form of harassment or discrimination rises to the level of hostile work environment.

"Petty slights, annoyances and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile or offensive to reasonable people," the U.S. Equal Employment Opportunity Commission advises.

Workplace conduct that may contribute to unlawful harassment could include offensive jokes, name calling, physical assaults, or threats, insults, offensive pictures, and interference with work performance, according to the EEOC.

"Someone could be harassed and not meet the hostile work environment, but if it is not a hostile work environment, they are not going to have a legal cause of action," Martin said. "An individual could hear an off-color joke, an individual could have one limited exchange with a supervisor that may rise to the level of harassment, but unless that harassment results in really affecting a term or condition of their employment, it's not going to be sufficient enough to create a cause of action."

A legitimate hostile work environment claim, Martin said, should meet four requirements:

1. The person allegedly subjected to the hostile work environment must be a member of a protected class.

2. The harassment must be based on the person's membership in the protected class.

3. That person must be subject to the unwelcome harassment, not simply observing it.

4. The harassment must affect a term, condition or privilege of the person's employment.

Those factors aren't always easily interpreted or proven.

In Kerr's case against the MVC and its director, Larry Kay, the claim of discrimination hinged on the fourth factor, as Kerr's position of outreach coordinator was eliminated in 2009, a few months after Kay encouraged her to split the duties of her previous position as ombudsman and fill the newly created job. Kay argued the decision to cut her position was based on budget constraints in the same year he approved significant raises and promotions for some male employees. Witnesses claimed to have heard Kay and other MVC leaders make comments about the need to "get rid of the older people" and "women can't do men's jobs," as well as overhearing Kay yell at Kerr.

"There is still no protection under state or federal law from a supervisor who is mean or treats employees inappropriately or unfairly," Martin said, explaining why proving "tangible damage" is so essential to a hostile work environment claim.

That damage may include loss of job, demotion, decrease of compensation, or a work environment so intolerable an employee has no other option but to quit (involuntary termination).

Such was the case for Ray, who left her job as a journalism teacher at JCHS in 2013 amid former Principal Jeff Dodson's alleged agenda to rid the school of older teachers' "dead weight" and other administrators' "aggressive" behavior toward her - leading Ray to resign less than a year before she would have been tenured, according to trial testimony.

A pro-litigation climate

Martin's observation that Missouri leans toward favoring employees in hostile work environment claims accounts for changes in the state's employment law over the past 10 years or so.

"Employment discrimination claims 15-20 years ago were filed typically in federal court," she said. "Now almost all discrimination claims are being brought in state court."

In 2003, the Missouri Supreme Court ruled plaintiffs pursuing a discrimination case under the Missouri Human Rights Act had a constitutional right to a trial by jury, which previously was assured only in federal court for Missouri plaintiffs.

Two years later, the Missouri Commission on Human Rights changed the standard for a discrimination claim to proving the victim's protected class status was a "contributing" factor in the alleged discrimination, rather than a "substantial" or "motivating" factor.

And in 2006, Missouri employment law expanded the Missouri Human Rights Act's definition of "employer" to include individual supervisors, making them as well as their organizations potentially liable for hostile work environment claims.

Those factors make it easier than ever for employees to file - and win - discrimination suits against employers in Missouri courts, making it more imperative than ever for employers to be prepared and preventive.

"There is no script or no formula for what it takes in order to create a hostile work environment claim in terms of the amount of the harassment but the standard in Missouri of 'contributing factor' is so critical and so different from the federal standard," Martin said. "Whether it be not hiring, demotion, termination - if any part of that analysis by the supervisor was based on age, sex or protected class, then that's enough to be a contributing factor."

According to the EEOC, "prevention is the best tool to eliminate harassment in the workplace."

In other words, companies' policies to prevent discriminatory conduct should be clear and accessible.

"The goal for employers should be to create a culture where any form of hostility and harassment is not allowed," Martin said. "One of the first things that I recommend is that employers have policies that, in writing, set out that the employer doesn't tolerate any form of discrimination or harassment and that sets up a process for the employees to make a complaint if they believe they've been subjected to any form of discrimination or harassment."

In addition to preventing factors that would contribute to a hostile work environment all together, that policy could be its own best defense.

"The employee has a duty to report a complaint to the employer before they bring a claim to court," Martin said. "The employer has a defense if they had a system in place to address discrimination and harassment and the employee failed to follow it."

Once an employee voices a complaint according to the company's policy, an HR representative or someone trained in employment law should "promptly and thoroughly" investigate the claim, communicate the results of the investigation to the affected employees, and take action if appropriate, she said.

Disciplinary action should depend on the level of the accused employee's behavior.

"I would consider factors like 'Are they a supervisor or a coworker?' because there's strict liability associated with supervisors engaging in harassing behavior, so an employer should be much less tolerant," Martin said. Other factors might include whether an employee has engaged in such behavior before, whether the complaint came from one individual or several, and the likelihood of the accused employee breaking that behavior. "It's very fact-specific."

More generally, Martin recommends employers ensure their policies are applied evenly to all employees - as shying away from disciplining an employee in a protected class when warranted in small matters can create big problems down the road.

"The employer should be following their same policies and holding those individuals in a protected class to the same standards as other employees from a disciplinary standpoint and keeping good documentation if the employees are failing to comply with the employer's policy," she said.

"At the end of the day, I think it comes down to how you treat people. If the employer is treating employees with respect and listening to valid employee complaints, employees are more likely to bring forward any issues, whether they be large or small."

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