A United States District Court for the District of Oregon recently held that a Plaintiff may use anti-religious comments and workplace profanity as evidence in support of a religious-based hostile work environment claim.
In Griffin v. City of Portland, Plaintiff, Kellymarie Griffin, characterized herself as "a devout Christian" whose faith is "the most important thing" in her life. Plaintiff's co-worker, Theresa Lareau, allegedly called Plaintiff a "wacko," told Plaintiff that God was "a figment of her imagination" and stated that Plaintiff was "praying to something that didn't exist." Plaintiff also alleged "frequent profanity" in the workplace by co-workers including the use of the names of God and Jesus Christ as curse words. Plaintiff alleged that the language was offensive to her due to her religious beliefs and that the misuse of God's name was blasphemous and "deeply offended her." Plaintiff claimed that when she heard profanity she would often inform the speaker that she was offended by the language. Most co-workers made efforts to stop cursing in Plaintiff's presence after Plaintiff's request.
On one occasion in May 4, 2011, a co-worker sneezed loudly and exclaimed "Jesus Christ!" in Plaintiff's presence. Plaintiff objected to the use of "profanity [involving] God's name" and stated that the language was "not professional," "distasteful," and "in violation of [her] religious convictions." Plaintiff alleged that Ms. Lareau responded loudly that, "I'm sick of your Christian attitude, your Christian [expletive] all over your desk, and your Christian [expletive] all over the place" and Ms. Lareau accused Plaintiff of using her religion for attention. Plaintiff instigated a formal investigation into the alleged religiously discriminatory behavior and subsequently brought suit under Title VII and state employment discrimination law.
The City moved for summary judgment on Plaintiff's claims. The district court held that "not every allegation of offensive conduct" by Plaintiff's co-workers will ultimately be pertinent to the question [of] whether Ms. Griffin was subjected to a hostile work environment because of her protected status." Nevertheless, the court concluded that Plaintiff had "shown sufficient evidence of religiously discriminatory conduct to make out a claim for hostile work environment religious discrimination as a matter of law" and denied the City's motion for summary judgment.
The court explained that to be actionable under Title VII, the offensive conduct must have been "because of" plaintiff's protected status. However, the court noted that the absence of a hostile intent does not insulate an employer from liability. "Thus, if conduct occurred 'because of' a plaintiff's protected status, even if the actor does not intend hostility or even know that the conduct may be perceived as hostile, that conduct is relevant to whether the plaintiff experienced a hostile work environment."
The court found two categories of conduct at issue in the case: profanity, and direct hostility to Plaintiff's beliefs. With respect to profanity, the court concluded that two types of profanity were alleged to have been used in the workplace: "profanity that expressly implicated religious ideas, such as the use of God's name as a curse" and "profanity that did not, such as simple expletives." The court determined that a rational jury could find that some of the workplace profanity occurred "because of" Plaintiff's religion although it was unlikely that the evidence would show that all of it did. For example, the court surmised that it is unlikely that a co-worker who used profanity without knowing that it offended Plaintiff used the language "because of" Plaintiff's religion. Rather, the co-worker may have cursed without contemplating whether it was offensive because he or she had a habit of using profanity. "Evidence that the coworker quickly apologized and refrained from cursing in Ms. Griffin's presence thereafter would bolster the argument that [the] coworker had not cursed because of Ms. Griffin's religious beliefs." However, the court acknowledged that the Plaintiff may be able to show that some of the profanity (especially the profanity by Ms. Lareau) was used because of hostility to Plaintiff's religious beliefs. The Plaintiff would bear the burden to establish that the conduct occurred "because of" her religion and Plaintiff would have to meet that standard of proof for any instance of profanity she wished to use at trial to support a hostile work environment claim.
The second category of conduct alleged was direct hostility to Plaintiff's beliefs, including calling Plaintiff a "wacko," stating her "belief in God was foolish," and stating that Plaintiff was praying to a "figment of her imagination." The Court noted that the denial of the City's motion for summary judgment was "largely based on the sufficiency of the evidence of such hostility in the record." The court predicted that Plaintiff would have to "walk a fine line" between events that occurred because of religion and events that did not. It would be Plaintiff's burden to show that such conduct was based upon her religious beliefs rather than a motivation unrelated to her religion.
It was not in dispute that Plaintiff subjectively perceived her work environment as hostile. Therefore, the question for the jury would be whether the conduct it found to have occurred "because of" Plaintiff's religion was sufficiently "severe and pervasive" to create a hostile work environment. Accordingly, the issue for trial would be "whether the work environment would have been perceived as hostile by a reasonable employee with Ms. Griffin's fundamental characteristics."
Finally, the court also denied summary judgment on whether the City had taken sufficient action to remedy the alleged religious discrimination. The City had argued that its action must have been sufficient to remedy the harassment because Ms. Lareau did not express hostility toward Plaintiff after the May 4, 2011 sneezing incident. The court rejected the City's argument. The court held that the fact "that an alleged harasser desisted from the complained-of conduct on his own accord is not enough to show that an employer has met its remedial obligation."
Griffin serves as a reminder that workplace profanity can raise potential Title VII liability for a hostile work environment. While a Plaintiff ultimately bears the burden of proving that the alleged conduct was severe or pervasive and was "because of" his or her religion (or sex, race, or national origin), employers should be aware that workplace profanity (even simple expletives that do not involve the use of religious names) might be used to support a hostile work environment claim. Griffin also demonstrates the importance of employers taking meaningful, remedial measures to investigate, address, and remedy allegations of religious discrimination raised by employees.