Time passes in the blink of an eye, as do changes in our culture and work environment. Just yesterday, I was counseling employers about new laws prohibiting discrimination against individuals with disabilities and requiring family leave, and managing employees in the “electronic” workplace, in a world of social media. Now that’s old news, with established norms and expectations.

Enter the next generation and ever-changing social norms… a world where minor slights, perceived insensitivities, “microaggressions” and “unconscious bias” form the basis of threatened litigation. But, is there a legal basis for such claims?  Is there a difference between “microaggressions” and harassment that is actionable under Title VII? What about “bullying?’ If bias is “unconscious,” how can it be intentional?

Over the past several months, the following behavior (and more) has come across my desk in the form of new or threatened claims of discrimination:

• An employee who was invited to a social outing by her coworkers during COVID claimed that the invitation constituted a “microaggression” against her on the basis of her national origin, claiming it was insensitive to the disproportionate impact COVID was having on the Hispanic community.
• An employee responded to criticism by his boss for being repeatedly late, stating that he did not appreciate, and was not going to respond to, his boss’s “aggressive” tone of voice, which he considered bullying.
• Use of the words “lowest on the totem pole” when describing unfavorable assignments being assigned to the newest employees as implying a negative stereotype of Native Americans.

What to make of all of this?

“Microaggressions” have been described as those small, “off-the-cuff” comments (and other behavior), often conveyed as compliments or genuine questions, that reflect an attitude of bias toward a historically marginalized group. For example, commenting that an African American is articulate, telling someone “they don’t look Jewish,” etc. Fair enough. But can such comments form the basis of a claim for harassment in violation of Title VII?

In order to state an actionable claim for harassment, an employee must prove that he was exposed to conduct directed at him because of his race, sex, etc., which was sufficiently severe or pervasive as to create an intimidating, hostile or offensive environment, and the conduct must be “subjectively and objectively offensive.” Can microaggressions meet this standard?

Two courts that have addressed this issue have found microaggressions more similar to “offensive utterances,” insufficient to support a hostile work environment claim. In Chambers v. City of Lakeland, 2022 U.S. Dist. LEXIS 116122, at *31 (M.D. Fla. June 30, 2022), the court found that microaggressions are more similar to “mere offensive utterances”’ than physically threatening or humiliating statements, and are insufficient to support a hostile work environment claim. Similarly, in Weinberg v. William Blair & Co., 2015 U.S. Dist. LEXIS 133759, at *17-18 (N.D. Ill. Sep. 30, 2015), the court held:  “On the spectrum of ‘physically threatening or humiliating’ statements to ‘mere offensive’ utterances, the bulk of the remarks lie much closer to the latter than the former. This coupled with their sparseness compels the conclusion that they did not create a hostile work environment actionable under Title VII.”

But… what about a work environment that is permeated with such conduct? Or, if the “microaggression” are used as evidence to support allegations of discriminatory intent?

“Implicit bias” is even more esoteric. According to the American Psychological Association, “implicit bias” is a negative attitude, of which one is not consciously aware, against a specific social group. It is thought to be shaped by experience and learned association between particular qualities and social categories such as race or gender. Stated more simply, it is a stereotype.

From a legal perspective, if one is not “aware” of this bias, how can it be used as evidence of intentional discrimination? According to Judge Adelman of the US District Court for the Eastern District of Wisconsin, “when the evaluation of employees is highly subjective, there is a risk that supervisors will make judgments based on stereotypes of which they may or may not be entirely aware.” He goes on:

With respect to the operation of stereotypes in the employment context, most scholars believe that stereotyping is a form of categorizing. Individuals draw lines and create categories based in part on race, gender and ethnicity, and the stereotypes they create can bias how they process and interpret information and how they judge other people. . .

Kimble v. Wis. Dep’t of Workforce Dev., 690 F. Supp. 2d 765, 775-78 (E.D. Wis. 2010). 

While such stereotypes may clearly exist, finding that they constitute evidence of discrimination is a slippery slope. Courts that have entertained this theory have recognized the difficulty of relying on unstated beliefs and “perceptions” of bias as evidence sufficient to support a claim of discrimination. For example, in Watkins v. City of Chi., 2020 U.S. Dist. LEXIS 52422, at *31-32 (N.D. Ill. Mar. 26, 2020), the court made the following observation:

[T]he Court is sympathetic to [the plaintiff’s] perception of implicit bias . . . and recognizes the difficulty of proving that a particular action was motivated by racism or sexism, where the decision-maker might not have even been actively thinking about race or sex, yet was still unconsciously driven by racist or sexist stereotypes. This is not to say that implicit bias can never be the basis for a Title VII claim. But in this particular case, Watkins has failed to offer enough concrete evidence to establish a causal connection between [his supervisor’s] alleged discriminatory attitudes toward Black women and [the adverse action taken against him].

In Martin v. F.E. Moran, Inc., 2018 U.S. Dist. LEXIS 54179 (N.D. Ill. Mar. 30, 2018), the court considered plaintiffs’ expert testimony on the issue of implicit bias, but determined that they “failed to tie [the expert’s] opinions regarding implicit bias to the individual circumstances surrounding their employment [sufficient] to prove that intentional discrimination actually occurred.” See also, Jones v. Nat’l Council of YMCA, 2013 U.S. Dist. LEXIS 129236, at *14-30 (N.D. Ill. Sep. 5, 2013) (court rejected plaintiff’s offer of expert testimony “to arm [it] with scientific knowledge about how bias works so it can evaluate for itself whether subjective criteria permit bias and stereotypes to affect employment outcomes;” proposed evidence offered only a discussion of implicit bias, but no opinion on how it applied to the conduct of the employer or its practices).

If plaintiffs are going to rely on evidence of implicit bias to prove a case of discrimination, they are going to need to do more than demonstrate its existence in our society and connect it to some concrete action in the workplace.

Another even more ubiquitous accusation in the culture of today’s workplace is “bullying.” There can be no doubt – bullying is real, can be present and has no place in the work environment. But… is it unlawful? 

Legally speaking, bullying is no different than harassment. That is, it has no place in the work environment and should not be tolerated – but it is not always unlawful. In fact, while it may be surprising, the law does not require that employers be nice, respectful or decent – as long as their conduct is not directed at an employee because of her race, sex, creed, disability, etc.

Title VII . . . does not guarantee a utopian workplace, or even a pleasant one. If the workplace is unsavory for any reason other than hostility generated on the basis of race, gender, ethnicity, or religion, no federal claim is implicated. In short, personality conflicts between employees are not the business of the federal courts.

Vore v. Ind. Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir. 1994). The Wisconsin Labor and Industry Review Commission stated it even more plainly:

[A]s much as it is to be deplored, it is a fact that employers and their supervisors and managers sometimes act in disrespectful, insulting, hostile, or abusive ways towards employees in the workplace . . . such conduct does not constitute a violation of the WFEA unless it is established that it occurred because of the protected status of the person who is being harassed.

Wells v. Roadway Express (LIRC, May 13, 2002). See also, Lewis v. Ivy Tech State Coll., 2006 U.S. Dist. LEXIS 34805, at *8 (N.D. Ind. May 18, 2006) (“Personal animosity, even monstrous conduct, is not actionable under . . . Title VII unless based on race.”); Hoosier v. Greenwood Hosp. Mgmt. LLC, 32 F. Supp. 3d 966, 979 (N.D. Ill. 2014) (“Federal civil rights laws do not exist to ensure that employees enjoy workplaces that are free from profanity or incivility; to be actionable, the conduct must either have a discriminatory character or purpose.”); Ballard v. Solid Platforms, Inc., 2012 U.S. Dist. LEXIS 45447, at *43 (N.D. Ind. Mar. 27, 2012) (“Title VII does not protect employees from ‘equal opportunity’ harassers, bullies, or, as appropriately suited to this case, ‘pain[s].’”).

While this well-established precedent may provide a dose of shocking legal reality to employees who feel abused or bullied by their supervisors or managers, it is important for employers to recognize the distinction between conduct that is unlawful and actionable, and conduct that is improper and unacceptable. Neither should be tolerated, but only one is unlawful.

If you have any questions about harassment, microaggressions, implicit bias, bullying, or other employment issues, feel free to contact attorney Alan Seneczko by email or at (262) 560-9696.