Employers investigating allegations of workplace harassment sometimes receive explanations from the accused parties that they never meant to cause distress to the complaining employee. They justify their behavior as joking or non-malicious, or blame a general atmosphere of teasing in the workplace. A new decision from the Tenth Circuit Court of Appeals reminds employers that the accused harassers’ intent is legally irrelevant in determining whether their actions created a hostile and offensive working environment.

In Lounds v. Lincare, Inc., the African-American plaintiff alleged that her white co-workers made constant comments and jokes about her race, describing her as “ghetto,” and constantly using purported African-American slang terms when talking with her and each other. She accused other co-workers of repeated offensive comments, justifying lynching and stating their fear of black persons committing crimes. The plaintiff complained to human resources, and the employer issued final written warnings to employees who made these comments. Despite these responses, the plaintiff filed a racial harassment claim, alleging that she had been subjected to a hostile and offensive working environment and retaliated against based on race.

The district court granted summary judgment for the employer. The Tenth Circuit reversed this decision, remanding the harassment (but not the plaintiff’s retaliation) claims for trial. While noting that Title VII does not impose a general civility code, the court determined that the racial harassment allegations constituted sufficient grounds to demonstrate a hostile and offensive working environment. The Tenth Circuit rejected the lower court’s reasoning that the comments did not create a hostile environment because they “were not made with animosity or scorn.” The lack of intent to embarrass or aggravate the plaintiff is not a relevant factor in making the hostile environment determination.

The Tenth Circuit concluded that the district court should have focused on the impact of the alleged statements on the plaintiff, and not on the accused harassers’ intent. Taken as a whole, the cumulative alleged effect of these comments was sufficient to allow a jury to determine whether the plaintiff had been exposed to a hostile and offensive working environment based on her race.

This decision reinforces the importance for employers to stop workplace teasing, banter or stray comments based on protected categories such as race, gender, religion, etc. Even if the comments are not directed at employees in that classification, and even if the employees making those comments claim that they meant no harm, the cumulative impact on the plaintiff of these statements over time may give rise to a hostile environment harassment claim. Employee training should focus on these legal realities and should emphasize the employer’s serious response to this behavior.