In a 2 – 1 decision, the Sixth Circuit Court of Appeals held that the totality of the circumstances used to determine whether a plaintiff was subjected to a hostile work environment was limited to those circumstances the plaintiff either personally perceived or was aware of.
In Berryman v. SuperValu Holdings, Inc. [pdf], eleven plaintiffs brought suit for race discrimination alleging they were subjected to a racially hostile work environment. The trial court found in favor of the defendants concluding that the events did not rise to the level of a hostile work environment. The court examined the claims of each employee separately, and “limited its analysis to those events that were either perceived by an individual or that the employee knew about.” The Sixth Circuit Court of Appeals upheld the trial court’s decision.
On appeal, the plaintiffs argued the trial court should have viewed the plaintiffs’ claims in the aggregate. The plaintiffs relied upon the Sixth Circuit’s prior decision in Jackson v. Quanex Corp. In Jackson, the court reversed the trial court’s dismissal in favor of the defendant, and held that a plaintiff was not required to be a party or witness to the harassing events in order to proceed with a claim for a hostile work environment. The court rejected the defendant’s argument, in part, because it believed limiting claims to only those events that were directed at or witnessed by a particular plaintiff was too restrictive. Instead, the court instructed that the appropriate test was whether the “totality of the circumstances” created a hostile work environment.
Although Jackson broadened the scope of conduct that can be considered by a court in determining whether a hostile work environment exists, according to Berryman, it does not expand to include conduct that a plaintiff did not perceive or was not aware of. Instead, the majority made it clear that while a plaintiff does not need to be the target of harassment, or a witness to the harassment; he must know of the harassment.
Berryman’s limitation of evidence on which a plaintiff may rely is significant for employers. The decision clarifies an earlier Sixth Circuit decision and limits what the phrase “totality of the circumstances” means. This decision will prevent groups of employees from aggregating allegations for the sole purpose of ensuring they have alleged events sufficient to meet the definition of a hostile work environment.
