What Is Harassment?

Sexual Harassment
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If your boss is awful, can you file a lawsuit?Harassment cases are judged on the facts of each situation. Unless one harasser is terrorizing an entire workforce, the actions and words of the alleged harasser are unique to each situation. Therefore, judges and juries need to decide whether the evidence shown at a trial establishes that harassment, as it has been defined by antidiscrimination statutes and the courts, actually occurred.

When an attorney or a judge looks at an alleged case of harassment, it is helpful to review not only past cases where harassment was found but also harassment cases that were dismissed. They establish the boundaries of what is considered an actionable case of harassment.

In this blog, we’ll look at the case of Kathy Kelleher, an Iowa Wal-Mart employee. What she claimed in her lawsuit against the retailer simply did not add up to harassment or even discrimination.

Wal-Mart Employee Struggles With Multiple Sclerosis and Employment

Kelleher filed a lawsuit in Iowa state court claiming that Wal-Mart failed to accommodate her disability (multiple sclerosis (MS)), retaliated against her because she asked for accommodations, and harassed her. Wal-Mart had the case moved to federal court, where the judge dismissed her case. Kelleher appealed the dismissal to the U.S. Circuit Court of Appeals for the Eighth Circuit, which agreed that her case should be dismissed in March.

Kelleher started working for Wal-Mart in 1995 as a truck unloader in its Dubuque store. After about two years, she was working as a stocker on the overnight shift. Part of the job included using ladders to put stock on shelves. Kelleher was diagnosed with MS in 1997. She told her supervisors that her physician recommended that she should not work on ladders.

  • Up until 2011, Wal-Mart accommodated Kelleher’s request. During this time, Kelleher sought a number of other accommodations.
  • In 2006, Kelleher made a formal request to take an extra break to take medication. That request was granted.
  • In 2009, Kelleher asked for another 15-minute break. Her request was sent to the local market human resources manager (MHRM), who suggested that the store deny the request and reassign her to another position not involving ladders. The store’s management ignored the recommendation and allowed her to work as a stocker while not using ladders as well as to take the extra break.
  • In January 2011, Kelleher received a leave under the Family and Medical Leave Act to undergo an appendectomy. When she returned to work, her physician’s return-to-work letter stated that she had permanent restrictions, including a 10-pound lifting restriction and the requirements that she could not pull pallets, climb ladders, or lift anything overhead.
  • The stocker position included having to move, pull, lift, and carry items weighing up to 50 pounds without help. Kelleher contacted her physician, who agreed to lessen the restrictions so she would only be precluded from climbing ladders or working in extremely hot or cold conditions. After the reduced restrictions, management allowed Kelleher to return to her stocker position without requiring her to use a ladder.
  • In June 2011, Kelleher asked for and received another 15-minute break.
  • Wal-Mart’s Accommodations Services Center manager, Kirk Hancock, decided in October 2011 that Kelleher’s restrictions prevented her from performing the essential functions of a stocker and determined that she should be put on a 90-day unpaid leave until a suitable job could be found. He sent a letter to the store, which apparently did not receive it, but it got a second copy the following January.
  • Kelleher’s store manager did not want to fire her. Together, he and the store’s personnel manager decided that the position of overnight cashier would work best for her. On the third shift, a manager normally worked cashier duties. If there were too many customers, a cashier would be asked to help; otherwise, the person in this cashier role would actually be stocking shelves. Kelleher got a raise of $0.20 an hour.
  • Kelleher claimed her performance evaluations dropped from “exceeds expectations,” which she received in the past, to “solid performer” as a cashier, which were a form of retaliation for asking for accommodations. In addition, her pay raise dropped from $0.50 to $0.40 an hour.
  • Other alleged retaliatory harassment after her June 2011 accommodation request included being forced to work alone, having difficult assignments, and having managers roll their eyes at her, act exasperated when she was nearby, ostracize her, hold her to a higher standard than others, and give her a workload double that of other employees. Kelleher also claimed managers asked her about the status of her work more frequently than other employees.

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Allegations Did Not Stand Up in Trial or Appellate Courts

Kelleher subjectively believed that she was discriminated against, retaliated against, and harassed, but the evidence that she provided was legally not enough. According to the Eighth Circuit,  what she claimed did not constitute illegal discrimination.

The court ruled that Kelleher could not show any adverse employment action due to her disability.

  • The transfer to the cashier position did not materially alter the terms and conditions of her work. Kelleher admitted that the job was less strenuous than that of a stocker, and she got a raise.
  • Though she did not want the job and feared comments from customers about her sight and speech problems, her fear was not enough to make the transfer an adverse employment action.

The appellate court did not find that the lowered job evaluations amounted to retaliation for her accommodation requests. Though a lower raise could be an adverse employment action, the appellate court ruled that Kelleher could not show that Wal-Mart’s given reasons for the evaluations were a pretext (not valid or not the true reason for its actions).

Wal-Mart claimed that the decreased ratings were caused by unresolved timeliness problems and that the manager doing the evaluations did not know about Kelleher’s accommodation request. Kelleher asserted that the close timing of her request and the lowered evaluations made the ratings suspicious. The appellate court found that actions close in time alone were not enough to support a retaliation claim, especially in this case, where store management actively sought alternate work to keep Kelleher employed.

The appellate court found that Kelleher was not “harassed,” as that term is defined by antidiscrimination law.

  • A hostile work environment is one filled with discriminatory intimidation, ridicule, and insults and that is severe or pervasive enough to change the condition of the victim’s employment and create an abusive working environment.
  • When deciding whether a hostile environment exists, judges look at how frequently the discriminatory conduct occurs, how severe it is, whether it is physically threatening or humiliating (or just isolated, offensive language), and whether it unreasonably interfered with an employee’s work performance.

Kelleher admitted that management was “abusive with a lot of people” (including, presumably, those who are not disabled), and she could not identify any discriminatory statements made to her. The appellate court wrote, “‘[R]andom ‘looks’ and eye rolls in Kelleher’s direction may be unpleasant to tolerate but, without more, they are not sufficiently severe to affect the terms, conditions, or privileges of Kelleher’s employment.”

Summing It Up

  • Cases often fail where the plaintiff may feel discriminated against and wronged by his or her employer but the facts are insufficient to establish that an adverse employer action or a hostile work environment actually existed. Even if the plaintiff can establish these elements, he or she must also show that the discrimination occurred because of his or her protected characteristic (in this case, Kelleher’s disability and requests for accommodation).
  • Judges do not want to get involved in what they see as minor work disputes and negative feelings unrelated to violations of the law. The burden is on a plaintiff to show that the facts of a situation establish that a company broke the law and that action by the court is warranted.

You should speak to an attorney to discuss your situation and get an informed opinion about whether what you feel may be illegal actions against you may actually violate state and federal laws. Contact our office so we can talk about what is going on, what laws may apply to the situation, and what you could do to protect your interests and rights.