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What Does It Take to Create a Hostile Work Environment? Apparently, a Single E-Mail Will Do.

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How much harassment does it take to create a hostile work environment? You might be surprised – but then again, maybe not. The Equal Employment Opportunity Commission (EEOC) just issued a ruling finding that a single e-mail is enough to support such a finding.

In Lashawna C. v. Perez (not the complaining party's real name), 2017 WL 664453 (Feb. 10, 2017), the EEOC concluded that the recipient of an e-mail containing an allusion to events that occurred more than 4000 years ago was sufficient to adversely affect "reasonable" person's work environment. This excerpt from the opinion tells the story:

At the time of events giving rise to this complaint, Complainant worked as a term Workers' Compensation Claims Examiner …. 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."

… [W]e note that the word "Hebrew" is often used to refer to Semitic persons who identify as descendants of Abraham, the biblical patriarch of Judaism. Moreover, when used to generally refer to contemporary Jewish persons, it is sometimes considered archaic or offensive. Coupled with the word "slave," the term "Hebrew slave" is particularly negative and offensive when used so flippantly. As such, we find that the use of the term "Hebrew slave" is inherently unwelcome when uttered in this particular context, especially when communicating with a Jewish person. There is no evidence that Complainant welcomed such a comment. Therefore, we find that S1's comment was unwelcome…. [I]t is [also] apparent that the term ""Hebrew slave" pertains specifically to Jewish persons, and as such, is inherently based on religion…. (emphasis added)

Based on that one statement, the EEOC determined 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. And the EEOC found that the AJ's award of $10,000 is supported by substantial evidence and that the AJ's award of attorney's fees in the amount of $10,980 is supported by substantial evidence.

There you go. No tangible discrimination, no adverse job action, no other offensive statements, no other evidence or anti-Semitism. The EEOC concluded that this single allusive reference to the Book of Exodus constituted religious harassment – to the tune of more than $20,000.

We should note that most cases aren't this extreme. This was a decision authored by the EEOC, not a Federal court. Courts usually apply more stringent standards when they evaluate harassment claims. A Supreme Court justice famously observed that the civil rights laws weren't meant to impose Victorian sensibilities on the American workplace. Most courts would likely dismiss the e-mail discussed above as a "stray remark," especially if it only occurred once.

This decision will likely become notorious for its conclusion that taking offense on this scale to a single e-mail message was the reaction of a "reasonable person." Again, this is the EEOC's conclusion: courts generally impose a more stringent, "objective" standard that requires more than an individual's subjective perception of the words or conduct.

This is a cautionary tale for everyone: be careful when you indulge in a colorful analogy to make a point.

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