Are you unreasonable if you do not become traumatized by a single insensitive workplace email or remark? No, according to the courts. But yes, according to the federal Equal Employment Opportunity Commission: It ruled that a single, non-threatening email was “religious harassment” that would poison the work environment for a “reasonable person.” As a result, it ordered the Labor Department to pay $20,980 in taxpayer money, $10,000 of it to the Labor Department employee who complained about the email, and $10,980 to her lawyer.
The EEOC took this bizarre position in its February 10 ruling in Lashawna C. v. Perez. This ruling is one of a series of EEOC decisions ignoring limits on liability contained in federal law. As the EEOC’s Director of Federal Operations, Carlton M. Hadden, put it in that ruling:
Complainant and [Supervisor S1 had] exchanged emails about Complainant’s work hours and schedule. During the exchange, Complainant stated that government employees generally work shorter hours than private sector employees, and she was “working like a civilian.” In response, S1 stated the following:
‘Wow … then I must be a damn fool … cause I’ve been working like a Hebrew slave the last 9 years and don’t have enough time to take off … at least somebody got it right…..’
…We determine that a reasonable person in Complainant’s circumstances would find that S1’s comment was severe enough to create a hostile work environment based on her religion. Thus, we find that the AJ properly found that Complainant was subjected to religious harassment.
If “reasonable person” means “average person,” the EEOC’s ruling seems wrong. Most of the commenters at a Washington Post article seem to disagree with the EEOC’s ruling (a consensus seemingly shared by gentile and Jewish commenters). The EEOC’s ruling disregards court rulings that found precisely this sort of thing not to be illegal harassment, because it would not create a hostile environment for a “reasonable person.”
For example, a federal judge ruled that a Jewish woman could not sue over a series of hostile or insensitive remarks by her co-workers and superiors, including not only a remark about working “like a Jewish slave”―the very thing the EEOC deemed harassing―but worse comments as well, such as her supervisor’s “derisive comment about” her “religious observance,” and a commander’s hostile remark that she was a “troublemaker” after she complained about antisemitism. (Kaplan v. City of Chicago, No. 99 C 1758, 2004 WL 2496462, **13-14 (N.D. Ill. Nov. 4, 2009)).
Courts have ruled that behavior far more offensive than an insensitive email―such as calling someone a racial epithet―does not rise to the level of illegal racial harassment, when it only occurs once. As the Supreme Court has explained, the “’mere utterance of an … epithet which engenders offensive feelings in an employee,’” such as the N-word, is insufficient to constitute racial harassment. (See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993)). To violate federal law, conduct must be “severe or pervasive” enough to create a “hostile work environment” for a “reasonable person,” not a hypersensitive person. (See Clark County School District v. Breeden, 532 U.S. 268, 571 (2001)).
The EEOC also ignored court rulings saying that insensitive remarks are not as bad as face-to-face name-calling. The email to Lashawna may have been insensitive, but it did not call her names. Rather, the supervisor referred to himself as being a “Hebrew slave.” When a co-worker uses insulting words for other people―not you―it has to happen a lot more often to constitute illegal harassment. For example, an appeals court dismissed a racial harassment lawsuit by an African-American, even though his co-worker “often used” the N-word in his “presence,” because the co-worker didn’t call him the N-word. (See Bolden v. PRC, 43 F.3d 545 (10th Cir. 1994)).
This EEOC ruling is inconsistent not only with court rulings, but also the language of the statute, which only bans harassment when it is sufficiently pervasive as to affect a “condition of employment.” By ignoring court rulings limiting liability, the EEOC is able to hand out taxpayer money to complainants and their lawyers for bringing cases that would be deemed meritless by a judge.
The Labor Department could appeal this Feb. 10 ruling by EEOC staff to the EEOC commissioners. But the EEOC currently has three Democratic commissioners and only one Republican commissioner, with one slot vacant that the incoming President has yet to fill.
The EEOC has also taken extreme positions in past rulings, such as labeling free speech as racial harassment. For example, the EEOC triggered public outcry and criticism from law professors last year when it revived a racial harassment complaint over a co-worker’s wearing a harmless cap with the Gadsden flag, the yellow flag with the words “Don’t Tread on Me” below a coiled rattlesnake. That EEOC ruling ignored both the non-racial nature and origins of the flag, and the Supreme Court’s requirement that a harassment plaintiff show that conduct is “severe and pervasive,” not just one display, to constitute harassment. (See Clark County School District v. Breeden, 532 U.S. 268 (2001)). It also ignored court rulings limiting liability based on “second-hand” exposure in that ruling, and an earlier ruling finding harassment merely because two of an agency’s many employees repeatedly wore confederate flag T-shirts, a ruling that UCLA law school professor Eugene Volokh has criticized.
Thankfully, the EEOC does not act as judge and jury in a case involving a private business―those cases get decided by federal judges, who usually pay attention to statutory limits on liability. The EEOC can sue a private business, but the business’s guilt or innocence is decided by a court. But the EEOC does often rule on the guilt or innocence of federal agencies such as the Labor Department.
Moreover, its rulings might influence some judges unfamiliar with the EEOC’s overreach. For that reason, Volokh says this EEOC ruling will have a chilling effect on speech even in private businesses: “reasonably cautious employers will thus feel pressured by the law to restrict a vast range of employee speech, for fear that the judge in their case will read the standard in the more plaintiff-friendly way.” Volokh also describes the wide array of speech affected by harassment rulings and some First Amendment problems that have arisen.
The primary winners from defining harassment very broadly are trial lawyers, not minority employees. If a harassment claim can be based on very little, employees will be able to sue over conduct that causes very little emotional distress, and thus leads to only a very modest damage award paid to the employee. But even if the employee only wins $1 in damages, the employer can still be ordered to pay tens of thousands of dollars in attorney fees to the employee’s lawyer. For example, a court awarded $42,000 in attorney fees in a case where a worker suffered only $1 in damages. (See Brandau v. Kansas, 168 F.3d 1179 (10th Cir.1999)).