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Monday, September 16, 2013

9th Circuit Reminds that Crude and Offensive Remarks Alone Do Not Create a Claim for Hostile Work Environment


In Westendorf v West Coast Contractors (2013) the Plaintiff, a project manager assistant, claimed hostile work environment based on sexual harassment, based on several sexual comments she heard from her manager, some of which were directed to her and others were directed to another woman. The Court affirmed that dismissal of the case. The Court noted yet again that isolated inappropriate comments, without other evidence of sexual discrimination or unlawful harassment, do not create a viable hostile work environment claim. Plaintiff was, however, allowed to proceed forward with her retaliation claim. This is because even though there was no sufficient evidence to prove the harassment claim, the court found that there was sufficient evidence to allow the Plaintiff to show

This decision makes a lot of sense. It would be impractical and borderline nonsensical to allow every inappropriate comment or sexual innuendo/joke turn into a lawsuit for obvious reasons. The Court requires evidence of unlawful hostility against an employee based on a protected class that goes beyond a few isolated comments, especially of those comments are taken out of context. 


Often, an employee is subjected to unlawful discrimination and retaliation while still employed and weeks or even months before being terminated. Although very "tempting," suing an employer while still employed is problematic. First, you are very likely to lose a job (just because it's unlawful to terminate an employee who exercises his legal rights to bring legal actions, doesn't mean that the employer simply can't violate the law and do it). Secondly, your recovery in any case is likely to be insignificant because you have not sustained any loss of wages, which is at the core of any settlement or judgment.

Despite the above, there are a few important things you can do to line up your "weapons" if and when you get unlawfully terminated as a result of discrimination or retaliation: 

1. Make sure that your boss cannot blame terminating or demoting you on your performance. This is a critical time to do the best you can, as the employer's love to use poor performance as excuse for termination, because it's so subjective and relatively hard, although possible to argue against. 

2. If there are any witnesses to unfair treatment, get their statements in writing if possible, and keep their contact information. In many cases with opposing sides having opposing story, witness statements are crucial. 

3. Keep all relevant documents, emails and other documentation proving discrimination, retaliation, or your complaints to HR or your superiors about the same, as they will be of critical important when proving your case in court. 

4. If you witness discrimination or harassment against yourself or others, complain to HR in a courteous but firm manner and ask for investigation in writing. 

5. If you are terminated, do not sign any releases in exchange for severance before you consult an attorney, as signing a release usually extinguishes all legal claims, committing the signing employee to never sue the employer for any violation.

Then, when the time comes and you are well equipped to fight, the results will be better and the process will be likely shorter, as the employer, facing substantial evidence against them will likely want to settle faster.