Cumulative Harassment Theory Must Include Individual Claims That Meet Severe and Pervasive Threshold
- June 19, 2015
Sometimes, employees believe that they have been discriminated against or harassed based on their membership in multiple protected categories. Employers often receive EEOC charges that identify race and sex, or age and disability as the alleged basis for the adverse employment action. Some employees contend that such discrimination on multiple bases somehow magnifies the severity of the conduct, resulting in a cumulative legal liability where the facts alleged would not support such a finding based on any one of the protected classes.
Last month in an unpublished decision, the Sixth Circuit Court of Appeals rejected a cumulative harassment claim where none of the alleged actions taken individually rose to the level of a hostile and offensive environment. In Wade v. Automation Pers. Servs., Inc., the plaintiff alleged that she was harassed based on her race, gender and religion. All of her examples of harassing conduct involved low level conflicts with co-workers that contained a very tenuous gender, race or religious connection. The lower court granted summary judgment based on the employer’s contention that the alleged conduct was not sufficiently severe or pervasive to violate Title VII.
The Sixth Circuit agreed, affirming dismissal of the lawsuit. Viewed individually, the alleged harassment constituted socially unacceptable behavior, but did not rise to the level of a hostile working environment. Federal courts recognize cumulative harassment actions, but only in situations where one of the plaintiff’s independent claims is sufficiently severe and pervasive on its own. Moreover, the plaintiff never offered evidence that her treatment was based on her being a religious, African-American woman.
When responding to EEOC charges that allege multiple protected classifications, employers should individually address each basis, demonstrating the legitimate, nondiscriminatory reasons for the action taken. If no single claimed basis for discrimination or harassment has merit, the fact that the plaintiff claims multiple other alleged wrongs will not result in cumulative liability for the employer.