A decision issued on October 22, 2015, denying an employer’s motion to dismiss a retaliatory discharge claim brought under Title VII of the 1964 Civil Rights Act and state anti-discrimination laws offers two important lessons for employers:
- It is never a good idea to use Hitler, Nazis, or swastikas in your mandatory company seminars; and
- A single incident may provide the basis for a hostile work environment claim if it is “extraordinarily severe.”
The decision, Orlando v. BNP Paribas N. Am., Inc., (10/22/15), involved Plaintiff, Jean Orlando, who is Jewish. He worked at BNP Paribas North America Inc. in its New York office.
Orlando alleged that his manager told him to “shut the f*ck up” when Orlando said he was “deeply offended” by a video that played at a mandatory company seminar. The video portrayed Adolf Hitler as the CEO of a BNP competitor bank, and Nazi soldiers as competitor bank executives. It also included swastikas and other references to the Third Reich. Orlando further alleged that the manager made an “absolutely bone-chilling threat” about Orlando’s career.
Approximately eight months after the training seminar incident, Orlando’s bonus was significantly reduced from the prior year and he was terminated from his New York office and given the option to be reinstated in France at a reduced salary. Orlando later filed suit claiming his termination was in retaliation for complaining about the training video.
The Court denied summary judgment to BNPP Paribas on Orlando’s retaliatory discharge claims brought under Title VII of the 1964 Civil Rights Act, reasoning:
Courts in this Circuit and elsewhere have noted that the Nazi regime and swastika are symbols of hatred capable of arousing fear and intimidation.
Orlando’s federal hostile work environment claim, however, was was time-barred because of a shorter filing period for Equal Employment Opportunity Commission charges.
The Court also allowed Orlando to proceed under New York state, and city law with his hostile work environment claims stemming from the training incident. In this regard, the Court reasoned that a single incident may provide the basis for a hostile work environment claim if it is “extraordinarily severe.”
BNPP argued that showing the Hitler video at the off-site training in Amsterdam wasn’t sufficiently severe or pervasive to create a hostile work environment under the New York State Human Rights Law or the New York City Human Rights Law.
In the category of “water is wet,” businesses should never think that incorporating Hitler and his Nazi regime into mandatory company materials. This goes for any hate group or symbols associated with such groups.
Also on a more serious note, it is important to understand that normally isolated incidents of discriminatory comments or conduct are not sufficient to establish a hostile work environment. Instead, incidents generally must be more than episodic; they must be sufficiently continuous and concerted to be deemed pervasive.
But there are situations where a single incident is “extraordinarily severe” to create a hostile work environment. The Court understandably had no difficulty concluding that single incidents involving Nazi-related materials and swastikas may create a hostile work environment.
For employers, however, it is important to treat every complaint or incident – regardless of the perceived severity – with the same focus of uncovering the facts and taking any corrective action that may be appropriate.
If you would like more information about investigating complaints of employment discrimination, contact employment attorney Jason Shinn. He works with employers and employees in addressing issues arising under federal and Michigan employment laws.