No Hostile Workplace Claim If Victims Oblivious: 11th Circ.

The Eleventh Circuit issued a precedential ruling Tuesday in an appeal by Austal USA LLC workers who saw their racial discrimination claims against the shipbuilder defeated by a lower court, holding that employees alleging an objectively hostile work environment cannot complain about conduct to which they were “oblivious.”

The appeal came after 23 African-American current and former employees of Austal, which is based in Australia and has its U.S. headquarters in Mobile, Alabama, sued the company, alleging vulgar racial graffiti frequently appeared in the shipyard’s restrooms and that white supervisors called an African-American employee derogatory terms.

In a published opinion, a three-judge panel ruled that a trial court had correctly tossed six employees’ cases on summary judgment because they couldn’t show that their work environment was not just subjectively hostile, but also objectively hostile.

Circuit Judge William H. Pryor Jr., writing for the panel, said that because those employees relied on “me too” evidence of harassment — harassment they were unaware of while employed at Austra — they couldn’t prove their work environment was objectively hostile.

“The totality of a plaintiff’s workplace circumstances does not include other employees’ experiences of which the plaintiff is unaware,” Judge Pryor wrote. “Courts conduct the objective assessment from the perspective of a reasonable person in the plaintiff’s position, knowing what the plaintiff knew. A reasonable person in the plaintiff’s position is not one who knows what the plaintiff learned only after her employment ended or what discovery later revealed.”

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~Author: Daniel Siegal