To prevail on a hostile work environment claim, an employee must establish that: (1) he or she belongs to a protected group, (2) he or she was subjected to unwelcome harassment, (3) the harassment was based on a protected characteristic, (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of his or her employment and create an abusive working environment, and (5) a basis exists for holding the employer liable. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 582 (11th Cir. 2000).
As to the first element, the employee must belong to a protected group. For example, if the comments or behavior relate to an employee’s recently dyed pink hair color, the claim is not likely to succeed as “pink hair” is not a protected characteristic under the law.
As to the second element, the incident must be unwelcome. To satisfy this element, there must be some evidence that the employee opposed the allegedly hostile action. The third element goes hand in hand with the first element as the hostile behavior or comments must relate to the person’s protected characteristic.
The fourth element is generally the most challenging element for employees to meet. Courts have found that to establish that harassment was sufficiently severe or pervasive to alter the terms or conditions of employment, an employee must prove that the work environment was both subjectively and objectively hostile. Courts generally find that employees meet their burden to show that the environment was subjectively hostile if they provide testimony that the situations or comments caused them stress and affected their work environment.
In order for a work environment to be objectively hostile, courts consider four factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance. While these factors guide the analysis, courts must consider the totality of the circumstances.
For example, one court found that “roughly fifteen separate instances of harassment over the course of four months” was pervasive. Johnson v. Booker T. Wash. Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000). Other courts have found that certain offensive racial slurs and gestures are so offensive that a single incident may be sufficient to be considered severe as a matter of law.
The third factor is established by conduct that is “physically threatening or humiliating.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). For example, courts have found that racial slurs directed at the employee every day are humiliating enough to support this element of the claim. See Smelter v. S. Home Care Servs., Inc. 904 F.3d 1276, 1286 (11th Cir. 2018) (noting that “[i]t was surely humiliating for [plaintiff], a black woman, to hear a co-worker say that black people are ‘the scum of the earth,’ that [she] looked like a ‘mixed monkey,’ and that black people should be ‘sent back…to Africa.’”).
For the fourth factor, employees must provide evidence that the conduct unreasonably interfered with their job performance. However, the U.S. Supreme Court “has cautioned that harassment need not be … so extreme that it produces tangible effects on job performance in order to be actionable.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1277 (11th Cir. 2002).