Suppose you have a seasonal business. You, therefore, hire mostly short-term employees. They work one or more particular seasons and then they’re gone. One day an employee comes to you and reports that s/he is being harassed because of his/her disability. You’re sorry to hear that, but you reason that s/he won’t be there much longer and you let it go. Then comes the lawsuit, alleging a hostile work environment. Wait. How can that be? Doesn’t the alleged conduct have to be pervasive? Doesn’t that mean it has to take place over a significant period of time? Surprise! Not necessarily. Let’s dig a little deeper and see what we can learn… As I’m sure you’ve guessed, I’ve got a real live case in mind. The case is Munoz v. Adventure Lands of America, Inc., 2021 BL 37057 (Iowa Ct. App. Feb. 3, 2021). In a nutshell, here’s what went down:
Ms. Munoz worked for an amusement park between May and September 2017. She had a medical condition that caused her to occasionally lose consciousness without warning. At first, the amusement park moved her to another, safer position. After that, her supervisors allegedly subjected her to derogatory comments on a daily basis. One supervisor allegedly said to her, “why the hell [are you] even working with restrictions like that?”. Another one allegedly said, she needed to work less because she was “being a b****”. Yet another one called her a “gang banger looking to get something” and “worthless” on multiple occasions. The supervisor, after noticing bruising on her face, asked her if her husband beat her. “[B]ecause that’s what Hispanics do. They beat their bitches.” He also allegedly accused her of faking her illness and of “being on so many drugs that [she] couldn’t even pass a drug test.” All her supervisors allegedly demeaned her almost daily over her frequent need to use the bathroom and told her how easy it would be to get her fired. When she reported the incidents to the director of her department, not only did he allegedly fail to take any action, but he even participated in a group email that belittled her and called her names. Is it really a surprise that she filed suit, claiming harassment and a hostile work environment primarily based on her disability? The employer moved for summary judgment.
The Iowa District Court for Polk County granted the motion and dismissed all claims. The Iowa Court of Appeals reversed the summary judgment ruling on her hostile work environment claim. While acknowledging the “high bar” an employee must clear on such a claim, the court went on to say that Ms. Munoz generated enough factual dispute to preclude summary judgment. The facts, according to the court, “contributed to the creation of a jury question whether she was subjected to a hostile work environment.”
Let’s first review the elements of a hostile work environment claim. To prevail, an employee must show 1) he or she belongs to a protected group; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic; and (4) the harassment affected a term, condition, or privilege of employment.’ A determination must consider all circumstances, including (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct was physically threatening or humiliating or whether it was merely offensive, and (4) whether the conduct unreasonably interfered with the employee’s job performance. These factors and circumstances must disclose that the conduct was severe enough to amount to an alteration of the terms or conditions of employment. Thus, hostile-work-environment claims by their nature involve ongoing and repeated conduct, not isolated events.”
Wait a minute. How could the conduct alleged here be “severe” and “pervasive” if she only worked for the amusement park for 4 months? The court acknowledged the short duration of her employment. The court acknowledged that while it was one factor among several to be considered, it did not, in and of itself, preclude her claim. The court also noted that the alleged harassers were not merely co-workers, but were “supervisors with direct authority” over her, and that “Harassing behavior of a manager carries more potency than that of a co-equal”. Finally, the court also noted that Ms. Munoz had presented evidence that managers bullied other employees with medical issues, reasoning that “Such claimed pattern of conduct adds to the jury question whether Munoz was subjected to overall hostility in the workplace.”
OK, we get it. The court felt that there was enough evidence of ongoing, pervasive bullying and harassment for the case to go to a jury (assuming the parties don’t settle first). What can — and should — the takeaways be for other employers, though? First and foremost: Even short-term employees can bring viable hostile work environment claims. If the conduct is severe, if it’s consistent enough, the short duration of employment will not, by itself, be fatal to a hostile work environment claim. Take all such allegations seriously. Are there other takeaways? Sure. As always, take all discrimination, harassment, or bullying allegations seriously. Promptly investigate and then take prompt remedial action if the evidence tends to substantiate the allegations. That means you must discipline the perpetrator(s) — no matter how high up in the company they may be.
All right then. Let’s call that a wrap for now. See you next time.
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