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Fourth Circuit Recognizes 'Equal Opportunity Harasser' Defense

    Client Alerts
  • August 24, 2023

We often hear claims from employees who threaten to sue their employer for creating a “hostile work environment.” When we dig into the complaints, often the employee is alleging that their manager is mean or unfair to them, resulting in a stressful work environment. These employees are frequently surprised to learn that such allegations, even if true, generally do not result in a viable legal claim against the company. Federal and state court judges have repeatedly declined to act as a human resource practice review board. Instead, judges only grant relief where the alleged conduct violates a specific law.

A hostile work environment is only actionable when it is based on the employee’s membership in a classification protected under law. A new decision from the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) demonstrates how a manager’s alleged uncivil behavior is not illegal if it is not applied in a discriminatory manner. In Foresyth v. Wormuth, the plaintiff was a civilian Army employee. She claimed that her supervisor consistently belittled her, subjected her to demeaning behavior, and tried to remove her from her role. She filed suit under Title VII, alleging discrimination and harassment based on her race and sex.

The Fourth Circuit affirmed dismissal of the lawsuit, concluding that the plaintiff failed to meet her burden of proving that she was subjected to the alleged conduct because of her race or sex. The court noted testimony indicating that the supervisor in question engaged in similar conduct with regard to a wide range of employees who also complained about the supervisor's behavior. The Army investigated and terminated the supervisor before the plaintiff experienced any adverse employment action.

The so-called "equal opportunity harasser" defense is usually a last resort for employers. The company basically admits that the offending conduct occurred but demonstrates that the supervisor treated everyone equally badly.

Even if the company prevails against legal claims based on the supervisor’s behavior, the turnover, lost productivity, and general damage to employee relations prove an important point: a prompt and effective response to employee complaints about a jerk manager can avoid significant cost and turmoil within the organization.

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