Dive Brief:
- A former Texas FedEx Office store employee failed to show that the company discriminated against her for reporting harassment six separate times by denying her a promotion, in part because the alleged conduct didn’t rise to the level of discrimination, the 5th U.S. Circuit Court of Appeals held Thursday.
- The plaintiff in Sanders v. Richardson claimed that she experienced a pattern of harassment and retaliation that was pervasive and disproportionately directed at Black employees. She further alleged that she was passed over for a promotion and that FedEx conditioned any future promotion on her ending her complaints. A district court granted summary judgment to FedEx and the 5th Circuit affirmed.
- The court’s decision noted that the conduct cited by the plaintiff — including bullying, aggressive and passive aggressive behaviors — could not be reasonably described as discriminatory. Authorities including the U.S. Equal Employment Opportunity Commission have said that petty slights and isolated incidents often are not considered discrimination under laws such as the Title VII of the 1964 Civil Rights Act.
Dive Insight:
Plaintiffs are not required to use “magic words” to establish a discrimination claim under Title VII, but they still must establish they have been treated unfairly because of a protected characteristic, the 5th Circuit said in its analysis. It and other appeals courts have previously ruled that similar alleged conduct fell short of the law’s standard.
In Sanders, one of the plaintiff’s complaints referenced “hostile, toxic, rude, aggressive, passive aggressive, smug, snide, bullying behavior.” She filed several others reports, including one to FedEx’s corporate HR department. But the kind of conduct referenced fell short of Title VII’s protections and, because it did, the plaintiff could not link it to any form of protected activity that would have been shielded from retaliation.
The plaintiff argued that a conversation she had with a district manager, in which the manager told her that “in order for me to approve you for any promotions, the HR stuff, that has to stop.”
However, the court rejected this reasoning because “HR stuff” referred to complaints that did not involve protected activity. It quoted the district court decision, which stated that “if a defendant employer admits to using unprotected activity as a basis for the adverse employment action, then for purposes of constituting direct evidence of retaliation, the employer has effectively admitted nothing at all.”
Past 5th Circuit decisions have found that employers can be unreasonable in making employment decisions without being considered discriminatory. That was the case in March, when the court said that a company’s decision to fire an employee less than three months after she filed a bias report against her manager wasn’t necessarily unlawful.
Conversely, a single incident of discriminatory behavior, such as the use of a racial slur, may be sufficient to demonstrate a hostile work environment claim if it is sufficiently severe, the same court held in a 2022 decision. This is because courts evaluate such claims on the totality of the circumstances, the 5th Circuit said.
Though it may not always be discriminatory, workplace bullying can be costly for employers, experts previously told HR Dive. HR teams can address bullying concerns in part by training staff to recognize and address problematic behaviors, establish consequences for those behaviors and involve senior leaders in addressing them.