THE TOXIC ENVIRONMENT:

1. THE TOXIC ENVIRONMENT: Case Studies on Liability for Workplace Actions

2. The Hostile Work Environment • Hostile work environment defined: • Four elements: conduct (1) unwelcome, (2) because of membership in protected class, (3) affected terms and conditions of employment, and (4) can be imputed to employer • Antonius v. King County, 153 Wn.2d 256 (2004) • Note: Elements of claim contain both subjective and objective points, allowing plaintiff to testify about how he/she felt, how it impacted his/her life. Claims often replete with the subjective.

3. To prove that conduct affected his or her terms or conditions of employment, the employee must establish that the conduct “is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Whether conduct meets this test depends on the “totality of the circumstances.”

4. Consider: the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive occurrence; and whether it unreasonably interferes with an employee's work performance.

5. Topic 1: Managing the Manager THE UNMANAGED MANAGER IN A TRADITIONAL MALE BASTION Collins v. Clark County, 155 Wn.App. 48 (2010) Long time head of fire district sued for failing to promote. Lawsuit was really about sexist banter that women breaking in to traditional male bastion used/encouraged in order to “fit in.” It stopped being funny. No one listened. Complaints went unheeded.

6. Collinscase Liability could have been avoided by: --Documenting “complaints” --conducting impartial investigation of complaints --performing actual oversight of manager --basing promotions on objective criteria --accurate periodic evaluations of employees (the overlooked employees—the ones who complained—had great evals)

7. Broyles case Broyles v. Thurston County, 147 Wn.App. 409 (2008). Deputy prosecutors claimed gender played a role in unfavorable management decisions. Comments over the years were trotted out to “explain” the “hostility” of the environment. Could have been avoided by: Workplace dispute resolution mechanism Accurate evaluations Accurate contemporaneous notes from HR professionals

8. Davis v. Fred’s Appliance, Inc., 171 Wn.App. 348 (2012) • Plaintiff was a delivery driver. Defendant store manager greeted him one day with the phrase, “Here comes Big Gay Al,” which “name apparently comes from a popular television program.” • Big Gay Al was not gay, but was very offended, flew into a rage and got himself fired. He sued the store, unsuccessfully. • For the employer to be automatically liable for employment actions, the actor employee must be the “alter ego” of the employer, with hiring and firing power.

9. Davis v. Fred’s Appliance (cont.) • Claim against store failed for a number of reasons: • First, a crude joke does not create a hostile work environment. (One court has held the use of the “N”-word does not, by itself, create a hostile work environment. The civil rights laws do not create a “civility code” at work.) • Second, plaintiff was not in a protected class: while sexual preference is a protected class in Washington, “perceived sexual preference” is not.

10. Topic 2: Once Upon a Time, Someone Said …. • Most of the testimony in the most successful plaintiff cases, like Broyles and Collins, is fairly innocuous: “He scrutinized my time records more carefully.” (Broyles). • But someone will remember a sexualized statement, or notice someone looking below the chin, or some other unprofessional behavior. That testimony is the key nexus to HWE recovery. • IN EVERY SUCCESSFUL CLAIM, HR is the demon who would not help anyone. “I told [HR director], but she never responded”

11. Topic 3: the best defense is a clear HR record • Defense strikes back: ammunition for defense includes: (1) Anything that contradicts self-serving plaintiff testimony --contemporaneous file notes best (2) Training, training, training. Employee signatures on HWE training sessions, held as often as possible, are gold in the hands of defense counsel (3) HR professionals need training in testifying (a form of public speaking)

12. Topic 4: A BETTER defense is a claim never filed • Clark and Broyles were fully avoidable. But HR is often powerless in the face of powerful “empires” of connected leaders. The leaders are the ones who cause the loss. • HR must be empowered to prevent huge losses. • Assume every complaint is going to end up in court. • “Papering the file” does more harm than good unless it’s papered well, and consistently.

13. Loeffelholz v. U of W, 175 Wn.2d 264 (2012) • Supervisor asked plaintiff if she was gay. (Why would he do that?) (At time, sexual orientation was not protected.) • Over next several years, he treated her differently. Told her not “to flaunt it.” • He went on active duty, returned, and by then, sexual orienta-tion was protected. • Court held that pre-military duty comments were admissible to explain the hostility of the work environment.

14. Campbell v. State, 129 Wn.App. 10 (2005) • For an employer to be responsible for a discriminatory work environment created by an employee's supervisor, the employee must show that the employer (1) authorized, knew or should have known of the harassment and (2) failed to take reasonably prompt and adequate corrective action; this element can be established by showing that complaints were made to the employer and the employer's actions were not of such a nature to end the harassment.

15. Estevez v. Faculty Club, 129 Wn.App. 774 (2005) • Given employer's prompt response to employee's claims of sexual harassment by coworker, coworker's actions were not imputable to employer, as required to establish hostile workplace sex discrimination claim under Title VII and state civil rights statute; when coworker began broadcasting his engagement to employee, who was already married,

16. Estevez (cont.) • employee's supervisor immediately made appointment to meet with workplace safety specialists from human resources and, after coworker continued to exhibit strange behavior and employee believed that he was stalking her, supervisor placed coworker on administrative leave and told him to stay away from workplace, and required mental health evaluation before he could return to work.

17. Crownover v. State ex rel. Dept. of Transp., 165 Wash. App. 131, 265 P.3d 971 (2011) To impute the harassment to the employer, the plaintiff must establish either (a) that the person using the conduct or language was an owner, manager, partner or corporate officer of the employer who participated in the conduct or language; or (b) that management knew, through complaints or other circumstances, that the harassing conduct or language existed and the employer failed to take reasonably prompt, corrective action designed to end the harassment; or

18. (c) that management should have known of the harassment, due to the pervasiveness of the conduct or language, or through other circumstances, and the employer failed to take reasonablyprompt, corrective action designed to end the harassment. • Crownover, supra.

19. The Toxic Environment Case Studies on Liability for Workplace Actions