The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Lashawna C. v. Perez (a pseudonym), an EEOC decision (2017 WL 664453) handed down Feb. 10:
At the time of events giving rise to this complaint, Complainant worked as a term Workers' Compensation Claims Examiner …. Complainant and [Supervisor S1 had] exchanged emails about Complainant's work hours and schedule. During the exchange, Complainant stated that government employees generally work shorter hours than private sector employees, and she was "working like a civilian." In response, S1 stated the following:
Wow … then I must be a damn fool … cause I've been working like a Hebrew slave the last 9 years and don't have enough time to take off … at least somebody got it right.
… [W]e note that the word "Hebrew" is often used to refer to Semitic persons who identify as descendants of Abraham, the biblical patriarch of Judaism. Moreover, when used to generally refer to contemporary Jewish persons, it is sometimes considered archaic or offensive. Coupled with the word "slave," the term "Hebrew slave" is particularly negative and offensive when used so flippantly. As such, we find that the use of the term "Hebrew slave" is inherently unwelcome when uttered in this particular context, especially when communicating with a Jewish person. There is no evidence that Complainant welcomed such a comment. Therefore, we find that S1's comment was unwelcome…. [I]t is [also] apparent that the term ""Hebrew slave" pertains specifically to Jewish persons, and as such, is inherently based on religion….
S1 testified that during the relevant time period, he was aware that Complainant is Jewish because she requested leave for religious purposes, but he used the term "Hebrew slave" in his email to her because this was a "common term that's used to reflect individuals who work with little means to produce great things." He further testified that he understood that the [term] related to the trials Jewish people endured while in bondage in Egypt, as recounted in the Bible. The Agency maintains that S1's comment was not severe enough to constitute harassment because he applied the term to himself, instead of to Complainant.
[Sentence moved:] [I]n evaluating whether the conduct is severe or pervasive enough to create a hostile work environment, the harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances….
Upon review of this matter, we note that the Commission has found that under certain circumstances a single or limited number of epithets or slurs may constitute harassment under Title VII. In this case, S1 made the comment in an email to Complainant, and S1 knew that Complainant is Jewish. Although S1 only made such a comment once, the comment packed a painful, potent punch. Specifically, S1's comment made light of the long and painful history of Jewish persecution and genocide.
Moreover, the comment was especially personal for S1 because it dredged up memories of how her family was targeted for systematically murder, incarceration, and deportation during the Holocaust. Complainant testified that S1's comments made her "incredibly sad," which we find to be a reasonable response to S1's actions. The fact that S1 may have intended his comment to be a joke or a cliché does not soften the offense any more here than it would if he had uttered an equally offensive racial slur. We determine that a reasonable person in Complainant's circumstances would find that S1's comment was severe enough to create a hostile work environment based on her religion. Thus, we find that the AJ properly found that Complainant was subjected to religious harassment….
Our finding that Complainant was subjected to religious harassment, coupled with Complainant's testimony that she was negatively impacted by S1's conduct, persuades us that the AJ's award of $10,000 is supported by substantial evidence…. [We also] find that the AJ's award of attorney's fees in the amount of $10,980 is supported by substantial evidence.
There was no finding of any tangible discrimination, or any other offensive statements, or any real anti-Semitism; the religious harassment finding (and the $20,000) bill was based solely on this one statement.
I should note that hostile environment harassment claims aren't always (or even usually) this easy to win—there are court cases rejecting harassment claims based on more and worse incidents. But with standards as vague as "severe," "pervasive," "hostile work environment," and "reasonable person in Complainant's circumstances," the results will naturally vary. And reasonably cautious employers will thus feel pressured by the law to restrict a vast range of employee speech, for fear that the judge in their case will read the standard in the more plaintiff-friendly way.