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Third Circuit: Isolated Act of Discrimination Can Create Hostile Work Environment

As employment lawyers, we frequently encounter misconceptions about what qualifies as a “hostile work environment.”  It has nothing to do with whether a supervisor or co-worker is simply picking on or being mean to an employee because of a general dislike.  Rather, it has everything to do with discrimination on the basis of the employee’s protected classification(s).

Past precedent from the United States Court of Appeals for the Third Circuit—which has appellate jurisdiction over federal district courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands—has created some confusion as to what kind of discrimination qualifies.  Does it need to be “severe or pervasive” or “severe and pervasive”?  How about “pervasive and regular”?  The Third Circuit has applied all three of these standards in hostile work environment cases in recent years.

In a precedential decision issued late last week, however, a three-judge panel of the Third Circuit provided clarity on this point by announcing that the appropriate standard is “severe or pervasive.”  This means that an “extreme isolated act of discrimination can create a hostile work environment” if all other elements of the plaintiff’s prima facie case are met.  In the case at issue, for example, two African-American laborers were told that they would be fired if they “n*****–rigged” a fence they had been instructed to remove.

Importantly, this decision is the first time that the Third Circuit has held that a single slur may serve to establish a hostile work environment.  In light of the court’s ruling, it is now more important than ever to ensure that employees and supervisors receive proper harassment training.  For questions about this or any other labor and employment topic, please do not hesitate to contact a member of our Labor and Employment Department.