By Ann Boehm, October 16, 2023
While teaching a recent class about hostile work environment, a participant asked me if an offensive bumper sticker on a co-worker’s car could create a hostile work environment.
Hmmmm. Interesting question.
Let’s work through this, shall we?
First, what is a hostile work environment? To establish a hostile work environment, an employee has to show that: “(1) he belongs to the statutorily protected class; (2) he was subjected to unwelcome conduct related to his membership in that class; (3) the harassment complained of was based on [the protected status]; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer.” Xavier P. v. Patrick R. Donahue, Postmaster General, EEOC Appeal No. 0120132144 (Nov. 1, 2013).
[Editor’s note: Hostile work environment is one of the challenging topics that will be covered during Advanced EEO: Navigating Complex Issues on Nov. 15-16 from 1-4:30 pm ET each day. Register now for one or both days of training.]
Next, is a picture or symbol something that can create a hostile work environment? According to the above-cited Xavier P. case, the answer to that question is most certainly, “yes.” What created the HWE in that case? “Caucasian employees in [the employee’s] work area wore t-shirts featuring the Confederate flag several times a month, and management took no action despite receiving complaints about it.” Id. The union president informed the postmaster that some employees found the t-shirts offensive and asked management to take action to prohibit the t-shirts in the workplace. The postmaster had a subordinate supervisor tell employees “not to wear revealing clothing or clothing with ‘political’ messages.” Id. The employees “were never instructed not to wear or display images of the Confederate flag.” Id.
The EEOC concluded the t-shirts subjected the employee to unlawful racial harassment. It also found the agency liable for not taking appropriate corrective action to stop the harassment. If wearing a Confederate flag t-shirt in the workplace constitutes racial harassment, could that carry over into the parking lot? I think so, but I did not find much guidance in case law on bumper stickers. I did find one EEOC “bumper sticker” case. Lockwood v. John E. Potter, Postmaster General, EEOC Appeal No. 0120101633 (2010). The employee did not claim HWE, only discrimination based on race and sex after seeing a bumper sticker in the office trash can that said, “When All Else Fails Blame The White Male.”
The bumper sticker was removed from the trash can, and it eventually was placed on the complainant’s personal vehicle – but not while the car was parked on agency property. (Can we all agree that the facts of this case are just plain weird? Who puts a bumper sticker, particularly one that could be offensive, on someone else’s personal vehicle?) The EEOC found no discrimination because the complainant “failed to show how the alleged incidents resulted in a personal harm or loss regarding a term, condition, or privilege of his employment.” Id.
So, what about an offensive bumper sticker on a personal vehicle parked on agency property? Sorry to do this. I have to give a lawyerly answer here. It depends. The EEOC told us that a Confederate flag in the workplace was racial harassment. Logically, that could cross over into an agency parking lot. Things that could impact on creating a hostile work environment: location of the parking lot (do people have to pass the car?; is it a small parking lot with few cars or large parking garage with many floors?); whether certain employees have assigned parking spaces (the union president or senior officials – knowing who is displaying the bumper sticker could make a difference); and the particular symbol on the bumper sticker (Confederate flag; sexually suggestive pictures or phrases). Would a bumper sticker of a skeleton hand extending a middle finger create a hostile work environment? (Yep, I drove onto a government facility behind that one.) Offensive, perhaps. Hostile work environment, probably not. Hard to say that one is tied to any particular protected status. What’s an agency to do? Employees have a right not to be subjected to a hostile work environment. Offensive symbols or pictures can create a hostile work environment.
There is the potential for a bumper sticker to create a hostile work environment. It all comes down to a fair analysis of the totality of the circumstances in light of the legal standard. The big takeaway from all of this – take a complaint about an offensive bumper sticker seriously. Instead of telling you that’s Good News, like I usually do with this article, I’m just going to say: Good luck out there! Boehm@FELTG.com