Milton G. Rowland509.777.1610 | rowlm@foster.com

Rev. 11.12

Case Studies on Liability for Workplace Actions

THE TOXIC ENVIRONMENT:

THE TOXIC ENVIRONMENT

The Hostile Work Environment

Hostile work environment defined:

Four elements: conduct (1) unwelcome, (2) because of

membership in protected class, (3) affected terms and

conditions of employment, and (4) can be imputed to employer

Antonius v. King County, 153 Wn.2d 256 (2004)

Note: Elements of claim contain both subjective and objective

points, allowing plaintiff to testify about how he/she felt, how it

impacted his/her life. Claims often replete with the subjective.

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THE TOXIC ENVIRONMENT

To prove that conduct affected his or her terms or

conditions of employment, the employee must

establish that the conduct “is sufficiently pervasive

so as to alter the conditions of employment and

create an abusive working environment.” Whether

conduct meets this test depends on the “totality of

the circumstances.”

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THE TOXIC ENVIRONMENT

Consider: the frequency of the discriminatory

conduct, its severity, whether it is physically

threatening or humiliating, or a mere offensive

occurrence; and whether it unreasonably

interferes with an employee's work

performance.

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THE TOXIC ENVIRONMENT5

Topic 1: Managing the Manager

THE UNMANAGED MANAGER IN A TRADITIONAL MALE BASTION

Collins v. Clark County, 155 Wn.App. 48 (2010)

Long time head of fire district sued for failing to promote.

Lawsuit was really about sexist banter that women breaking in to traditional male bastion used/encouraged in order to “fit in.”

It stopped being funny. No one listened. Complaints went unheeded.

THE TOXIC ENVIRONMENT6

Collins case

Liability could have been avoided by:

--Documenting “complaints”

--conducting impartial investigation of complaints

--performing actual oversight of manager

--basing promotions on objective criteria

--accurate periodic evaluations of employees (the overlooked

employees—the ones who complained—had great evals)

THE TOXIC ENVIRONMENT7

Broyles case

Broyles v. Thurston County, 147 Wn.App. 409 (2008).

Deputy prosecutors claimed gender played a role in unfavorable

management decisions. Comments over the years were trotted

out to “explain” the “hostility” of the environment.

Could have been avoided by:

Workplace dispute resolution mechanism

Accurate evaluations

Accurate contemporaneous notes from HR professionals

THE TOXIC ENVIRONMENT

Davis v. Fred’s Appliance, Inc., 171 Wn.App. 348 (2012)

Plaintiff was a delivery driver. Defendant store manager greeted him

one day with the phrase, “Here comes Big Gay Al,” which “name

apparently comes from a popular television program.”

Big Gay Al was not gay, but was very offended, flew into a rage and

got himself fired. He sued the store, unsuccessfully.

For the employer to be automatically liable for employment actions,

the actor employee must be the “alter ego” of the employer, with

hiring and firing power.

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THE TOXIC ENVIRONMENT

Davis v. Fred’s Appliance (cont.)

Claim against store failed for a number of reasons:

First, a crude joke does not create a hostile work environment.

(One court has held the use of the “N”-word does not, by itself,

create a hostile work environment. The civil rights laws do not

create a “civility code” at work.)

Second, plaintiff was not in a protected class: while sexual

preference is a protected class in Washington, “perceived

sexual preference” is not.

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THE TOXIC ENVIRONMENT

Topic 2: Once Upon a Time, Someone Said ….

Most of the testimony in the most successful plaintiff cases, like

Broyles and Collins, is fairly innocuous: “He scrutinized my time

records more carefully.” (Broyles).

But someone will remember a sexualized statement, or notice

someone looking below the chin, or some other unprofessional

behavior. That testimony is the key nexus to HWE recovery.

IN EVERY SUCCESSFUL CLAIM, HR is the demon who would

not help anyone. “I told [HR director], but she never responded”

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THE TOXIC ENVIRONMENT

Topic 3: the best defense is a clear HR record

Defense strikes back: ammunition for defense includes:

(1) Anything that contradicts self-serving plaintiff testimony

--contemporaneous file notes best

(2) Training, training, training. Employee signatures on HWE

training sessions, held as often as possible, are gold in the

hands of defense counsel

(3) HR professionals need training in testifying (a form of public

speaking)

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THE TOXIC ENVIRONMENT

Topic 4: A BETTER defense is a claim never filed

Clark and Broyles were fully avoidable. But HR is often

powerless in the face of powerful “empires” of connected

leaders. The leaders are the ones who cause the loss.

HR must be empowered to prevent huge losses.

Assume every complaint is going to end up in court.

“Papering the file” does more harm than good unless it’s

papered well, and consistently.

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THE TOXIC ENVIRONMENT

Loeffelholz v. U of W, 175 Wn.2d 264 (2012)

Supervisor asked plaintiff if she was gay. (Why would he do

that?) (At time, sexual orientation was not protected.)

Over next several years, he treated her differently. Told her not

“to flaunt it.”

He went on active duty, returned, and by then, sexual orienta-

tion was protected.

Court held that pre-military duty comments were admissible to

explain the hostility of the work environment.

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THE TOXIC ENVIRONMENT

Campbell v. State, 129 Wn.App. 10 (2005)

For an employer to be responsible for a discriminatory work

environment created by an employee's supervisor, the

employee must show that the employer (1) authorized, knew or

should have known of the harassment and (2) failed to take

reasonably prompt and adequate corrective action; this element

can be established by showing that complaints were made to

the employer and the employer's actions were not of such a

nature to end the harassment.

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THE TOXIC ENVIRONMENT

Estevez v. Faculty Club, 129 Wn.App. 774 (2005)

Given employer's prompt response to employee's claims of

sexual harassment by coworker, coworker's actions were not

imputable to employer, as required to establish hostile

workplace sex discrimination claim under Title VII and state civil

rights statute; when coworker began broadcasting his

engagement to employee, who was already married,

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THE TOXIC ENVIRONMENT

Estevez (cont.)

employee's supervisor immediately made appointment to meet

with workplace safety specialists from human resources and,

after coworker continued to exhibit strange behavior and

employee believed that he was stalking her, supervisor placed

coworker on administrative leave and told him to stay away

from workplace, and required mental health evaluation before

he could return to work.

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THE TOXIC ENVIRONMENT

Crownover v. State ex rel. Dept. of Transp., 165 Wash. App. 131, 265 P.3d 971 (2011)

To impute the harassment to the employer, the plaintiff must establish

either (a) that the person using the conduct or language was an

owner, manager, partner or corporate officer of the employer who

participated in the conduct or language; or (b) that management

knew, through complaints or other circumstances, that the harassing

conduct or language existed and the employer failed to take

reasonably prompt, corrective action designed to end the

harassment; or

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THE TOXIC ENVIRONMENT

(c) that management should have known of the

harassment, due to the pervasiveness of the conduct or

language, or through other circumstances, and the

employer failed to take reasonably prompt, corrective

action designed to end the harassment.

Crownover, supra.

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Milton G. Rowland509.777.1610 | rowlm@foster.com

Rev. 11.12

Case Studies on Liability for Workplace ActionsThe Toxic Environment