D.C. Circuit, hostile work environment decision

In Greer v. Paulson, No. 06-5155 (D.C. Cir. Nov. 2, 2007), involving events at the IRS in the mid 1990's, the D.C. Circuit affirmed the grant of summary judgment on the plaintiff's hostile work environment claims. However, the court decision has useful language explaining that acts in the workplace while the plaintiff is away from work (e.g., on leave), can still constitute a hostile work environment, particularly if they discourage the plaintiff from returning to work.

http://pacer.cadc.uscourts.gov/docs/common/opinions/200711/06-5155a.pdf

Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

. . . This court has not spoken on whether an employee's absence bars consideration of work-related incidents for purposes of exhausting a hostile work environment claim. But in Morgan, the Supreme Court recently reaffirmed that "[t]he phrase 'terms, conditions, or privileges of employment' [of 42 U.S.C. § 2000e-2(a)(1)] evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." 536 U.S. at 116 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations omitted)). Given this context, the Supreme Court explained that it is appropriate to consider any timely incident, even where there is a significant time gap between that incident and prior allegations, "so long as each act is part of the whole." Id. at 118. The five courts of appeals that have considered this issue agree that employee absence does not bar consideration of work-related incidents as part of a hostile environment claim. As the Eighth Circuit held in Jensen v. Henderson, 315 F.3d 854, 861-62 (8th Cir. 2002), a hostile work environment "can be a continuing violation even though the employee is not working" where the employee claims her employer drove her out of the workplace due to harassment and "she has received no indication that the environment of harassment has changed."

We join our sister circuits in rejecting a per se rule against considering incidents alleged to have occurred while an employee was physically absent from the workplace. There are various ways in which a hostile environment may extend beyond the physical workplace, and thus contribute to and form part of a hostile environment claim. For example, harassment and hostile incidents may occur by telephone or in person during an employee's communication with her employer while she is not working or away from the office. See, e.g., Richards v. Dep't of the Army, 2007 WL 579549, at *3 (6th Cir. Feb. 15, 2007) (unpublished per curiam). When an employee claims that her "inability to return to work resulted from the [employer's] ill treatment of her," the Eighth Circuit observed, communications while on leave may form an essential part of a hostile environment claim. Jensen, 315 F.3d at 861-62. A per se rule barring consideration of incidents during a workplace absence would provide an employer with a perverse incentive to place on leave an employee for whom it had created a hostile environment in order to insulate itself from liability. As the Second Circuit observed, there should be no reward for an employer "who sought to rid [the worksite]" of certain employees on the basis of sex or race, by driving them to take leave, or otherwise escape from the workplace. Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Just as an employer's positive attempts to cure a hostile environment during an employee's absence may protect the employer from liability, any negative actions the employer takes during the absence should be considered. See, e.g., Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir. 2000). . . .