In a recent decision, the Third Circuit Court of Appeals revisited the issue of what constitutes a “hostile work environment” pursuant to Title VII.

In Perry v. Harvey, an African-American civilian employee of the United States Department of the Army filed suit alleging that his supervisor had subjected him to a hostile work environment in violation of Title VII. 

To prove a hostile work environment, a plaintiff must show that his workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment and that the discrimination was both subjectively and objectively detrimental to the victim. 

Offhanded comments and isolated incidents (unless extremely serious) are not sufficient to sustain a hostile work environment claim. Rather, the conduct must be extreme to amount to a change in the terms and conditions of employment. 

In support of his claim, the employee in Perry alleged that he overheard his supervisor refer to men of color as being dumb and useless, denied him a request for leave to take his mother to a doctor’s appointment, wrongly advised him to report to a "phantom" meeting with the police chief, and asked him for verification that he had taken a drug test, although such verification was not normally requested from other officers.  Most significantly, the employee alleged that the supervisor had approached him while he was sitting in a parked vehicle after his shift and asked, "[w]hat are you doing here, boy?"

In coming to the conclusion that the employee’s evidence was insufficient as a matter of law to prove a hostile work environment, the appellate court in Perry cited the United States Supreme Court’s landmark decision in Faragher v. City of Boca Raton for the proposition that “Title VII is not a "general civility code . . . [T]he ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing" do not support a hostile work environment claim.

The appellate court in Perry held that the conduct complained of by the employee was not severe or pervasive enough to "to alter the conditions of his employment and create an abusive working environment” or to detrimentally affect a reasonable person. 

Although the employee, himself, conceded that much of the conduct was “petty in nature”, he argued that the "boy" comment, alone, was severe enough to violate Title VII by itself.  Pointing out that mere utterance of an ethnic or racial epithet which engenders offensive feelings does not sufficiently affect the conditions of employment to implicate Title VII, the appellate court in Perry rejected his argument that the “boy” comment was severe enough to implicate Title VII.  Even accepting the inference that the comment was racially motivated, the appellate court opined that it did not rise above an "offhanded comment" or "sporadic . . . abusive language" previously found permissible under Title VII.   

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