Not all workplace harassment rises to the level of a Title VII violation. Employees are expected to put up with a substantial level of unpleasant behavior in the workplace before their experience becomes actionable as a hostile and offensive working environment. Courts struggle as to where this line is drawn, but a recent Eighth Circuit Court of Appeals case identifies several factors that are used in determining that alleged harassment was not severe enough to impose liability on the employer.

In Malone v. Ameren UE, the plaintiff was an African American employee who alleged racial harassment based on four incidents over a two-year period. Three of these incidents involved racist comments or graffiti not directed at the plaintiff. The fourth incident was alleged sabotage of a machine that the plaintiff operated, which the employer concluded actually resulted from an equipment malfunction.

The Eight Circuit concluded that these allegations did not constitute creation of a hostile work environment. The long period of time and indirect exposure of the plaintiff to this behavior were not sufficiently severe and pervasive to constitute an objectively hostile work environment based on race. Courts balance the number of incidents and time period against the severity of the alleged conduct. A single incident of severe harassing behavior may be enough to create a hostile environment, but lower level behavior requires repetition over a relatively concentrated time period.

In this case, the employer was aided by its prompt and effective response to each incident of alleged harassment. Any potential negative impact on the plaintiff was mitigated by the employer's decisive disciplinary action taken against the perpetrators of racially harassing behavior.