A Not So Special Snowflake

Written on October 26, 2017.

With all this talk about sexual harassment in the news, it is nice to find out that there are some things that you can call someone at work without being liable for harassment. This week, we learned that the Seventh Circuit Court of Appeals does not consider calling a co-worker a "snowflake" to be actionable harassment. Actually, the white custodian in question was called a "dumb, stupid snowflake," which is mean, but still not actionable harassment. (Fellers v. Brennan, 7th Cir., No. 17-1176, unpublished, summary judgment affirmed 10/24/17).

The Seventh Circuit further held that the plaintiff's other allegations, which also included being called a "dumb, stupid f**king asshole white boy," weren't severe or pervasive enough to sustain a harassment claim under Title VII of the 1964 Civil Rights Act. In its decision, the Court noted that the plaintiff wasn't physically threatened, and the alleged conduct wasn't frequent.

While these types of comments, used infrequently, may not rise to the level of actionable harassment, that does not mean that an employer should just let them go. The first step in combatting harassment in the workplace and preventing lawsuits like this one is to encourage employees to respect one another. In fact, this month, the EEOC launched a new employer training program aimed at creating respectful workplaces. The EEOC claims that the training program focuses on respect, acceptable workplace conduct, and the types of behaviors that contribute to a respectful and inclusive, and therefore ultimately more profitable, workplace. The program is customizable for different types of workplaces and includes a section for reviewing employers' own harassment prevention policies and procedures. There are two different training programs: Leading for Respect (for supervisors) and Respect in the Workplace (for all employees).

Pro tip: Some harassment prevention is just common sense: no supervisor or manager should tolerate an employee calling another employee disparaging names, or "dumb" or "stupid." That's the time to remind employees that "we don't treat each other like that around here."

Kathleen J. Jennings

Former Principal

Kathleen J. Jennings is a former principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.