FOR A HOSTILE WORK ENVIRONMENT
CLAIM TO HAVE MERIT, THE COMPANY
OR MANAGER MUST BE RESPONSIBLE
FOR THE HARASSMENT.
report discrimination there may be legal ramifications. Attorneys
can play a critical role in this process. We can provide guidance
and information to help employees and employers understand
how best to proceed. Ideally, both should have the same goal—to
stop offensive behavior and harassment in the workplace.
The first issue an attorney may face is determining whether
an employer was placed on notice of the perceived misconduct.
For a hostile work environment claim to have merit, the harassment must be imputable to the employer; that is, the company
or manager must be responsible for it. Typically, this is not
an issue if the harassment comes directly from an individual
owner or manager, since they are aware of their actions. See
Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406-07, 693
P.2d 708 (1985).
For larger companies, where this line may not be clear, or
in situations where the harassment is from a peer, imputation
needs to be established through more formal channels, such as
a written complaint to human resources or management. If an
employee never puts his or her employer on notice that there
may be harassment, there is no opportunity to stop discriminatory conduct. It is also possible that an employer didn’t perceive the conduct to be offensive. There is a substantial body
of case law holding that Title VII as well as Washington’s law
against discrimination (RCW 49. 60 et seq.) is not a “general
civility code.” See, e.g., Adams v. Able Building Supply, Inc., 114
Wn. App. 291, 297, 57 P.3d 280 (2002). To this point, the U.S.
Supreme Court has stated:
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
[The] standards for judging hostility are sufficiently demand-
ing to ensure that Title VII does not become a ‘general ci-
vility code.’ Properly applied, they will filter out complaints
attacking ‘the ordinary tribulations of the workplace, such as
the sporadic use of abusive language, gender-related jokes,
and occasional teasing.’ …We have made it clear that conduct
must be extreme to amount to a change in the terms and con-
ditions of employment.
This can be true even in cases where physical touching
is involved. A recent Ninth Circuit decision exemplifies this
tension and indicates reasonable minds may disagree on
the distinction between ordinary workplace tribulations and
unlawful harassment. In Zetwick v. County of Yolo, 850 F.3d
436 (9th Cir. 2017), a female county corrections officer in California said the county sheriff subjected her to “more than a
hundred” unwanted hugs and one “kiss on the cheek” over the
course of 13 years. The district court granted summary judgment in favor of the county, finding that hugs or a kiss on the
cheek were not sufficiently severe and pervasive to constitute
sexual harassment. The Ninth Circuit reversed, noting that the
district court applied the wrong standard, (severe or pervasive)
but also pointed out that a court must examine the “totality of
the circumstances.” Thus, context is relevant and in Zetwick
it included the frequency of the touching, the seniority of the
alleged harasser, and whether he acted similarly towards men.
That means it is important for an employee to know that: ( 1)
if she or he fails to report the harassment, she or he may not
be able to pursue a claim, and ( 2) even if she or he does, there
must be evidence that the conduct was so severe or pervasive
it impacted the terms and conditions of employment.