THE TOXIC ENVIRONMENT:
Case Studies on Liability for Workplace Actions
Milton G. Rowland
509.777.1610 | [email protected]
Rev. 11.12
The Hostile Work Environment
 Hostile work environment defined:
 Four elements: conduct (1) unwelcome, (2) because of
membership in protected class, (3) affected terms and
conditions of employment, and (4) can be imputed to employer
 Antonius v. King County, 153 Wn.2d 256 (2004)
 Note: Elements of claim contain both subjective and objective
points, allowing plaintiff to testify about how he/she felt, how it
impacted his/her life. Claims often replete with the subjective.
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 To prove that conduct affected his or her terms or
conditions of employment, the employee must
establish that the conduct “is sufficiently pervasive
so as to alter the conditions of employment and
create an abusive working environment.” Whether
conduct meets this test depends on the “totality of
the circumstances.”
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Consider: the frequency of the discriminatory
conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive
occurrence; and whether it unreasonably
interferes with an employee's work
performance.
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Topic 1: Managing the Manager
THE UNMANAGED MANAGER IN A TRADITIONAL MALE
BASTION
Collins v. Clark County, 155 Wn.App. 48 (2010)
Long time head of fire district sued for failing to promote.
Lawsuit was really about sexist banter that women breaking in to
traditional male bastion used/encouraged in order to “fit in.”
It stopped being funny. No one listened. Complaints went
unheeded.
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Collins case
Liability could have been avoided by:
--Documenting “complaints”
--conducting impartial investigation of complaints
--performing actual oversight of manager
--basing promotions on objective criteria
--accurate periodic evaluations of employees (the overlooked
employees—the ones who complained—had great evals)
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Broyles case
Broyles v. Thurston County, 147 Wn.App. 409 (2008).
Deputy prosecutors claimed gender played a role in unfavorable
management decisions. Comments over the years were trotted
out to “explain” the “hostility” of the environment.
Could have been avoided by:
Workplace dispute resolution mechanism
Accurate evaluations
Accurate contemporaneous notes from HR professionals
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Davis v. Fred’s Appliance, Inc., 171 Wn.App. 348 (2012)
 Plaintiff was a delivery driver. Defendant store manager greeted him
one day with the phrase, “Here comes Big Gay Al,” which “name
apparently comes from a popular television program.”
 Big Gay Al was not gay, but was very offended, flew into a rage and
got himself fired. He sued the store, unsuccessfully.
 For the employer to be automatically liable for employment actions,
the actor employee must be the “alter ego” of the employer, with
hiring and firing power.
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Davis v. Fred’s Appliance (cont.)
 Claim against store failed for a number of reasons:
 First, a crude joke does not create a hostile work environment.
(One court has held the use of the “N”-word does not, by itself,
create a hostile work environment. The civil rights laws do not
create a “civility code” at work.)
 Second, plaintiff was not in a protected class: while sexual
preference is a protected class in Washington, “perceived
sexual preference” is not.
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Topic 2: Once Upon a Time, Someone Said ….
 Most of the testimony in the most successful plaintiff cases, like
Broyles and Collins, is fairly innocuous: “He scrutinized my time
records more carefully.” (Broyles).
 But someone will remember a sexualized statement, or notice
someone looking below the chin, or some other unprofessional
behavior. That testimony is the key nexus to HWE recovery.
 IN EVERY SUCCESSFUL CLAIM, HR is the demon who would
not help anyone. “I told [HR director], but she never responded”
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Topic 3: the best defense is a clear HR record
 Defense strikes back: ammunition for defense includes:
(1) Anything that contradicts self-serving plaintiff testimony
--contemporaneous file notes best
(2) Training, training, training. Employee signatures on HWE
training sessions, held as often as possible, are gold in the
hands of defense counsel
(3) HR professionals need training in testifying (a form of public
speaking)
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Topic 4: A BETTER defense is a claim never filed
 Clark and Broyles were fully avoidable. But HR is often
powerless in the face of powerful “empires” of connected
leaders. The leaders are the ones who cause the loss.
 HR must be empowered to prevent huge losses.
 Assume every complaint is going to end up in court.
 “Papering the file” does more harm than good unless it’s
papered well, and consistently.
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Loeffelholz v. U of W, 175 Wn.2d 264 (2012)
 Supervisor asked plaintiff if she was gay. (Why would he do
that?) (At time, sexual orientation was not protected.)
 Over next several years, he treated her differently. Told her not
“to flaunt it.”
 He went on active duty, returned, and by then, sexual orientation was protected.
 Court held that pre-military duty comments were admissible to
explain the hostility of the work environment.
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Campbell v. State, 129 Wn.App. 10 (2005)
 For an employer to be responsible for a discriminatory work
environment created by an employee's supervisor, the
employee must show that the employer (1) authorized, knew or
should have known of the harassment and (2) failed to take
reasonably prompt and adequate corrective action; this element
can be established by showing that complaints were made to
the employer and the employer's actions were not of such a
nature to end the harassment.
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Estevez v. Faculty Club, 129 Wn.App. 774 (2005)
 Given employer's prompt response to employee's claims of
sexual harassment by coworker, coworker's actions were not
imputable to employer, as required to establish hostile
workplace sex discrimination claim under Title VII and state civil
rights statute; when coworker began broadcasting his
engagement to employee, who was already married,
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Estevez (cont.)
 employee's supervisor immediately made appointment to meet
with workplace safety specialists from human resources and,
after coworker continued to exhibit strange behavior and
employee believed that he was stalking her, supervisor placed
coworker on administrative leave and told him to stay away
from workplace, and required mental health evaluation before
he could return to work.
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Crownover v. State ex rel. Dept. of Transp., 165
Wash. App. 131, 265 P.3d 971 (2011)
To impute the harassment to the employer, the plaintiff must establish
either (a) that the person using the conduct or language was an
owner, manager, partner or corporate officer of the employer who
participated in the conduct or language; or (b) that management
knew, through complaints or other circumstances, that the harassing
conduct or language existed and the employer failed to take
reasonably prompt, corrective action designed to end the
harassment; or
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 (c) that management should have known of the
harassment, due to the pervasiveness of the conduct or
language, or through other circumstances, and the
employer failed to take reasonably prompt, corrective
action designed to end the harassment.
 Crownover, supra.
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The Toxic Environment
Case Studies on Liability for Workplace Actions
Milton G. Rowland
509.777.1610 | [email protected]
Rev. 11.12
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