Once again, a decision by the Third Circuit Court of Appeals demonstrates the difficulties in prevailing on hostile work environment claims.
In Brooks v. CBS Radio, Inc., an African-American account executive at CBS Radio resigned after his supervisor distributed a book “New Dress For Success”, which contained racially offensive content. The content of the book was pretty egregious, containing such passages as:
(i) "If you are black selling to white Middle America, dress like a white. . . . This clothing conveys that you are a member of the establishment and that you are pushing no radical or other feared ideas."
(ii) "Blacks selling to whites should not wear Afro hairstyles or any clothing that is African in association. If you are selling to corporate America, it's very important that you dress, not as well as the white salesman, but better than them. You have to wear suits, shirts and ties that are expensive and more conservative than your white co-workers."
(iii) "If you are white selling to blacks, you will fare much better if you dress in non-establishment patterns. Black America is essentially divided into two camps, establishment and anti-establishment, and the divisions are not dictated by income alone. . . . Almost all members of Northern ghettos who are in the lower socioeconomic groups are understandably anti-establishment. . . . The black establishment includes all blacks who have made it along with almost all Southern, rural blacks, no matter what their position. Southern blacks do not consider themselves disenfranchised."
After complaining about the book to the Human Resources Director, the account executive resigned from his employment as he did not have confidence that CBS was going to resolve the matter adequately and did not trust his supervisor, who had distributed the book, as he had previously offended him on prior occasions.
After proceedings in front of the Pennsylvania Human Relations Commission and state court, the account executive filed suit in federal district court, alleging a hostile work environment and constructive discharge. The federal district court dismissed the lawsuit in favor of CBS at the summary judgment stage of litigation. On appeal, the Third Circuit Court of Appeals affirmed the federal district court’s ruling.
To establish a hostile work environment claim, a plaintiff must show: (1) that he suffered intentional discrimination because of race; (2) that the discrimination was severe or pervasive; (3) that the discrimination detrimentally affected him; (4) that the discrimination would have detrimentally affected a reasonable person of the same race in his position; and (5) that there is a basis for vicarious liability.
The Third Circuit Court of Appeals found that the account executive could not demonstrate intentional discrimination as his supervisor had not read the offensive book before distributing it and that he also could not demonstrate any other intentional discrimination due to his race. Additionally, the appellate court found that the incidents the account executive complained of did not rise to the level of “severe” or “pervasive” that it altered the conditions of his employment and created an abusive environment. In doing so, the appellate court also dismissed the account executive’s constructive discharge claim as well.
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