Not all offensive behavior is actionable

published in McAfee & Taft EmployerLINC | February 20, 2014

By Charles S. Plumb

There are a lot of good reasons for employers to want to eliminate workplace confrontations. Disputes among employees affect productivity, make for an unhappy and unprofessional work environment, and can escalate to more serious acts. As long as employers employ people, workplace arguments will periodically erupt. However, not all of them may be a violation of anti-discrimination laws.

Things get hot at the Hot Springs newspaper

Loretta Rester was a graphic designer for the Hot Springs Village Voice, an Arkansas newspaper. In the spring, Rester and her supervisor, general manager William Elderton, were working together on a special golf publication. The client had rejected their earlier proposal, and Elderton and Rester were working through revisions.

angry-bossDuring that process, Elderton became extremely angry. He slammed his hands on the desk and began screaming and cursing at Rester. When Rester pushed her chair back, stood up and attempted to leave the room, Elderton place his hands on her and physically prevented her from leaving. When Rester started to wail, cuss, scream and “holler,” Elderton backed off, and Rester went outside to her automobile.

Ten minutes later, Rester returned to the office and met with Elderton and editor Lynette Melcher. As a result, Elderton apologized to Rester, and Rester worked the remainder of the day.

Nine days later, Rester e-mailed a complaint to the newspaper’s publisher and Elderton’s supervisor, Dennis Byrd. As a result of her complaint, Byrd and a human resources representative met with Rester. Rester explained what happened between her and Elderton, told them she loved her job, and said she wanted to keep working for them. The Hot Springs newspaper took no disciplinary action against Elderton.

A little over a week later, Rester e-mailed her resignation to Byrd. The publisher asked Rester to continue to work at the paper and explained that Elderton would be retiring in two months. After some consideration, Rester told Byrd her resignation decision would stand.

After resigning her position with the newspaper, Rester sued her employer and Byrd and Elderton individually, claiming she had suffered sex discrimination, a hostile work environment and had been constructively discharged.

Why her claims failed

There was no question Elderton’s treatment of Rester was uncalled for. However, Rester had not been fired and had not lost pay or benefits. There had been no job duties or responsibilities changed. Also significant was the fact Rester had not offered any evidence that Elderton’s boorish behavior was based on the fact she was female. This resulted in her sex discrimination claim to be dismissed. As to her hostile work environment and constructive discharge accusations, the court found Elderton had acted offensively; however, it was a “singular incident,” did not repeat, and did not “permeate” the workplace. The evidence showed that the Hot Springs newspaper did their best to try to keep Rester as an employee, and there was no evidence it tried to force Rester to quit. Thus, the court dismissed Rester’s hostile work environment and constructive discharge claims.

Not a free pass

I am not suggesting for a moment that Elderton’s behavior was okay or should in any way be condoned. There is no room for that type of conduct at work. Such behavior divides the workforce, is a harmful distraction, and may become more serious. Nevertheless, not all workplace “blow-ups” are illegal. The employer’s interests are always best served by preventing and quelling disputes before they escalate.

  • Rester v. Stephens Media, LLC, et al., Case No. 12-3934 (8th Cir. 1/13/14)