by Joanna Vilos
Employees sometimes complain about undesired or harassing conduct that does not rise to the level of a hostile work environment under Title VII of the Civil Rights Act of 1964. A decision from a Wyoming federal court reveals which steps employers can take to avoid liability and how employers can defend themselves from an employee’s allegations. 
Hostile work environment claims
As we all know, employees tend to use the phrase “hostile work environment” pretty loosely. A valid hostile work environment claim generally alleges conduct that is so severe or pervasive that it alters the terms or conditions of an employee’s employment. The claim must allege conduct that is based on a protected characteristic such as sex, religion, or national origin.
On the other hand, conduct that is merely insensitive, tasteless, or vulgar may not lead to a hostile work environment claim. The U.S. 10th Circuit Court of Appeals (whose rulings apply to all Wyoming employers) has stated, “Title VII’s mandate is not to ensure workplace harmony or create a finishing school.” Whether conduct is severe or pervasive enough to support a hostile work environment claim depends on many factors, including:
- The frequency of the conduct;
- The severity of the conduct;
- Whether the conduct is physically threatening or humiliating or merely an offensive utterance; and
- Whether the conduct unreasonably interferes with the employee’s work performance.
Recent case
Carolin Miller, an administrative assistant in Union Pacific Railroad’s steam locomotive shop in Cheyenne, alleged that her supervisor, Edgar Dickens, sexually harassed her by:
- Forcing himself into a seat next to her at a group dinner and forcefully pushing his leg against the side of her leg;
- Complimenting her on a costume she wore to a group event, asking if he could adjust her cap, and then adjusting it;
- Telling her that “the most unattractive woman could be wearing the same style cap and it would be a major turn on for him”;
- Lingering to get his things after she asked him to leave so she could change clothes;
- Texting her on her private phone to ask if she wanted to go to dinner with him alone (she declined);
- Texting her to ask if she would join him at the train to keep him company (she declined);
- Sitting next to her at another dinner and again forcibly pushing his leg against hers; and
- Asking her to work late multiple times to keep him company because he “did not have a life.”
Miller sued Union Pacific, alleging a sexually hostile work environment in violation of Title VII based on Dickens’ alleged conduct.
Miller’s claims fail
Judge Nancy Freudenthal dismissed Miller’s hostile work environment claim without a trial. Judge Freudenthal ruled that a reasonable jury could not find that Union Pacific’s workplace “was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of Miller’s employment and create an abusive working environment based on Miller’s sex.” The judge noted that Miller admitted that Dickens did not touch her in an intimate way or in a private area, use graphic sexual language with her, or show her images or other materials that were sexually offensive.
Despite finding that there was not a hostile work environment, the court briefly described the measures Union Pacific took after learning of Miller’s allegations—steps that helped the company avoid liability. Donna Colley, a company representative, explained to Dickens that Miller believed he had acted inappropriately toward her and did not appreciate his requests to stay late or go to dinner with him. Colley told Dickens to stop his behavior and discussed the company’s equal employment opportunity (EEO) and retaliation policies with him.
Minor snubs were not retaliation
Miller also alleged that Dickens retaliated against her after she filed her sexual harassment complaint. She claimed that her office was moved to a toilet/closet room, she was ostracized by management, some of her job duties were taken away for no reason, and Dickens sent her home for two days.
Judge Freudenthal ruled that Miller failed to establish a retaliation claim, noting a U.S. Supreme Court decision explaining that Title VII retaliation claims require that a desire to retaliate be the “but-for” cause of an adverse employment action Notably, Judge Freudenthal found that the alleged retaliatory conduct did not constitute an adverse employment action. For example, the suggestion that Miller work out of a break room instead of sharing office space with Dickens came from Union Pacific’s EEO officer, who was attempting to put some distance between Miller and Dickens in light of her claims that he sexually harassed her. Because the suggestion was not mandatory, the court determined it was not an adverse employment action.
As for Miller’s claim that Dickens was not friendly toward her, failed to respond to her e-mails, and was “generally unpleasant” to her after she filed her complaint, the court found those acts were only minor slights or snubs that were not actionable under Title VII.
The court noted that Miller’s salary and benefits did not change after she filed her harassment complaint. Also, vagueness about which job duties were taken away from her and the fact that she chose to take off a couple of days undermined her retaliation claim. The court held that because her time off occurred approximately two months after she filed her harassment complaint, she failed to establish a causal connection to support a retaliatory motive. The court ultimately dismissed all of Miller’s claims in their entirety. Miller v. Union Pac. R.R., Case No. 14-CV-47 (D. Wyo., June 18, 2015).
Practical steps when facing hostile work environment claims
To avoid liability for a hostile work environment, you must take steps to stop and remedy unlawful harassing behavior. But what should you do when a harassment complaint alleges conduct that is relatively minor or behavior that is not based on a protected characteristic?
First, investigate the conduct. Even if the complaint alleges behavior that you believe doesn’t rise to the level of a hostile work environment, you still need to discover the full extent of the conduct. Engage in a thorough and timely investigation by interviewing the individuals involved as well as witnesses. Obtain supporting evidence such as videos, e-mails, or other documents that may shed light on the allegations. Make sure you have all the facts before deciding whether action should be taken.
If you question whether the conduct was severe or pervasive enough to create a hostile work environment, take steps to defuse the situation and put a stop to the behavior. Without going into detail about actions you’ve taken against and statements made by other employees, talk to the worker who reported the alleged harassment, and provide a general overview of the outcome of your investigation. Emphasize that your company takes harassment complaints seriously, and instruct the employee to let you know immediately if the inappropriate conduct continues or escalates. If appropriate, offer ideas to make the employee more comfortable such as changing work areas or shifts to reduce the contact between the employee and the alleged harasser. Just be careful not to make a mandatory change that could be construed as an adverse employment action and lead to a retaliation claim.
Be sure to talk to the alleged harasser as well. Let the individual know the conclusions you reached during your investigation (again, without divulging confidential details), and discuss company policies that come into play. Identify behaviors that may be having a negative effect on the workplace, and remind the individual that harassment and retaliation will not be tolerated.
If you conclude that the conduct is sufficiently severe or pervasive to create a hostile work environment, take appropriate steps to stop the behavior immediately, and impose appropriate discipline in accordance with your policies. Follow up periodically to ensure the inappropriate behavior does not continue. Keep your eyes and ears open, and check with the employee who made the harassment complaint. If new allegations surface, investigate them. As always, be sure to document your remedial efforts.
Deciding whether conduct is sufficiently severe or pervasive to result in liability is not always easy. Truth be told, if inappropriate or unprofessional conduct is occurring in your workplace, you have good reasons to put a stop to it, even if it does not rise to the level of a hostile work environment. Follow the steps above to show that you treat all reports of inappropriate conduct seriously and that you do not tolerate conduct that creates a hostile work environment. In the end, you may not be able to stop employees from pursuing claims in court, but you can take the necessary steps to defend against those claims and avoid liability.
Joanna Vilos is a partner with Holland & Hart LLP, practicing in the firm’s Cheyenne, Wyoming, office. She may be contacted at jvilos@hollandhart.com