Hunt & Associates P.C.

A Great Lesson for Employers, Courtesy of the Hawaii Department of Education

In a 9th circuit case from Hawaii, a teacher sued the school she worked at for discrimination due to alleged disparate treatment based on her sex and race, hostile work environment, and retaliation. She claimed that she had been retaliated against for reporting harassment.

What happened? 

The employee claimed that she was frequently harassed and degraded by students on the basis of her race (white) and her sex (female). She alleged that students called her a slew of offensive names, including “f****** weirdo”, “c***”, “b****”, and “f****** haole.” According to the employee, she was even physically threatened by one student who claimed to have a gun.

What did she have to prove?

For the claim of disparate treatment under Title VII an adverse employment action is one that “materially affects the compensation, terms, conditions, or privileges of employment.” Davis v. Team Elec. Co., 520 F3d 1080, 1089 (9th Cir 2008)

What did the employee think was an adverse employment action and what was the court’s response?

1. That the Department of Education lost the paperwork from a prior performance evaluation. (The court said this was not an adverse employment action).

2. That the school initiated an investigation against her. (The court said this was not an adverse employment action because the investigation did not impact her work and she was allowed to work as normal.)

3. That the school denying her request for a transfer was an adverse employment action. The reality was she never requested a transfer through the proper channels. (The court said this was not an adverse employment action.)

4. That she was not put on paid administrative leave while she was being investigated for complaints – except that the school allowed her to continue working during the investigation. (The court said that she was essentially complaining that the school chose not to alter the terms and conditions of her employment – so definitely not an adverse employment action.)

5. That she was assigned to teach remedial math classes and some music classes. The reality was that the employee had refused to teach certain other classes which left holes in her schedule. (The court said this was not an adverse employment action.)

6. That the Department of Education failed to adequately respond to her complaints of offensive student conduct. The reality was that the Department of Education took prompt action to discipline the children. (The court said this was not an adverse employment action.)

7. That a fellow teacher telling her to stop “ragging” on students and staff constituted a hostile work environment and sexual harassment.

The employee argued that these comments were tantamount to the phrase “on the rag” – a phrase both sides conceded could be a crass and insulting way to refer to a woman’s menstrual cycle.

The Court had a good time with this one and broke out a trusty dictionary. The court said that the argument entirely disregards the difference between the well-known phrase to “rag” or “rag on” something and the potentially offensive phrase “on the rag”.  The phrase to “rag” something is not at all offensive; it simply means “rail at” and “scold” or “torment” and “tease”. Webster’s gives a perfectly benign example: “[S]everal readers called in to rag the editor for his paper’s repeated grammatical lapses.”

Clearly the Court did not buy this argument either.

What are the takeaways for employers from this case?

1. Treat all employees equally. Have clear written rules and guidelines regarding how you make employment decisions and apply these rules to everyone.

Here, the school’s defense would have been weakened had the employee been able to show that, for example, the school had failed to initiate an investigation against a male colleague.

2. Take prompt corrective measures. If you receive a complaint or learn of harassment, take immediate action.

Here, the vice principal promptly investigated all incidents of student misconduct that the employee reported and the school took corrective action where her complaints were substantiated. The actions varied and included issuing warnings to students, placing them in detention, suspending them, and even transferring them out of the employee’s classes.

Remember that an employer may be held accountable for actions only if, after learning of the harassment, it failed to take prompt corrective measures that were “reasonably calculated to end the harassment.” Freitag v. Ayers, 468 F3d 528, 539 (9th Cir 2006).

© 8/7/2018 Phillip D. Jones of Hunt & Associates, P.C.  All rights reserved.




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