Kathleen Bray

A recent 8th Circuit case involving a Missouri bus driver gave the Court an opportunity to discuss hostile work environment claims under Section 1981 as well as Title VII. In this matter, the employee had been subjected to foul language by a number of black employees, but the trial court determined that this had not raised the situation to the level of a hostile work environment. For the court to determine that a hostile work environment exists under either Section 1981 or Title VII, a person in a protected class must show that he or she was subjected to unwelcome race-based harassment, the harassment was because of membership in their protected class, and the harassment affected a term, condition or privilege of his or her employment. The workplace must be “permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe and pervasive.” Moreover, it must be objectively hostile. Most importantly, the employee must show that the employer must have known or should have known of the harassment and failed to respond in a prompt and effective manner. These claims must meet demanding standards, and courts are to filter out those complaints concerning the ordinary tribulations of the workplace. In this case, the Court found insufficient evidence that management was aware of the racial nature of the harassment, as they had only been told that foul language had been used. Henderson v. Durham, LLC (8th Cir. 2010).