Woke Alert: Not Every Creepy Work Environment Is Unlawful Harassment.
The #MeToo movement and other social changes have made employees more aware of their rights, and more prone to speak up or even file suit if they feel they have been treated unfairly based on sex, race, or other protected statuses.
But a decision last month in Delaware involving Amazon.com illustrates that even when a boss crosses the line and makes the work environment uncomfortable based on race and sex, it may not rise to the level of “severe or pervasive” harassment prohibited by law (especially if a more conservative judge is involved in reviewing the case).
In Sousa v. Amazon.com, Inc., federal judge Stephanos Bibas (a Court of Appeals judge serving in a visiting capacity) reviewed key facts alleged by Emily Sousa, a woman of Japanese descent. They included a supervisor telling her on her first day of work that “women are too delicate to work at Amazon” and comparing her to an adult actress. When she was transferred, her new boss called her repeatedly – sometimes for up to an hour – to talk about his personal life, his haircuts, his girlfriends, and his vacation plans. He also steered conversations toward her Japanese heritage and mentioned racial stereotypes, including that Japanese people were known to be “polite and non-confrontational.” He told her that if he ever visited Japan, she could be his “travel guide.” He also asked her if she was “available,” but did not ask her out.
Judge Bibas, a Trump appointee, ruled that the handful of alleged unwanted phone calls were “workplace troubles, not discrimination,” and that the alleged harassment was not sufficiently severe or pervasive to create a hostile work environment under the law. He noted that the four alleged phone calls were spread over three months (i.e., not pervasive), that the supervisor stopped short of propositioning her, and that while the comment about women on the first day “crossed the line,” it was an isolated incident.
As such, the court dismissed the complaint without prejudice, allowing Sousa to re-plead, if she so desired.
The case is a reminder that not every offensive utterance or clumsy mention of a protected status violates the law, especially if the reviewing judge is on the more conservative side. Instead, the harassment or hostility must rise to a severe, heightened, or pervasive level such that the workplace is altered and a reasonable person would agree it is hostile or offensive. According to Judge Bibas, that was not the case here. How would a liberal judge rule on the same facts? Who knows, but Sousa surely will hope that Bibas’s visiting status in Delaware is over when she refiles.