Dive Brief:

• A sales associate for AutoZone didn't provide enough evidence to prove her claims of sex discrimination, retaliation and hostile work environment (Bentley v. AutoZoners, LLC, Autozone NorthEast LLC, No. 18-2441-cv (2nd Cir. August 19, 2019)).
• Rachel Bentley argued on appeal that she had provided enough evidence to allow the court to find that AutoZone's reason for her discharge — that she used crude language toward a co-worker who disparaged women — was a pretext for sex discrimination and retaliation. She also argued that AutoZone was responsible for the allegedly hostile work environment because the offending co-worker was a supervisor, and that even if he wasn't, AutoZone had enough notice of misconduct to be liable for failing to remedy the work environment. The company disputed having notice of the misconduct until right before Bentley was fired.
• The 2nd U.S. Circuit Court of Appeals agreed with the district court that Bentley provided inconsistent evidence of when she notified AutoZone about the co-worker's statements. The 2nd Circuit also rejected Bentley's hostile work environment claim, ruling that the co-worker was not Bentley's supervisor because he could not hire, fire, demote, promote or transfer her. For this reason, summary judgment was correctly granted on Bentley's claims of discriminatory and retaliatory discharge and hostile work environment. AutoZone had provided a non-discriminatory reason for Bentley's discharge — the remark she made to her co-worker was "extremely crude and would not be tolerated in any workplace outside, perhaps, of a locker room" said the 2nd Circuit — and Bentley herself acknowledged that the remark was "inappropriate and expressly prohibited by company policy."

Dive Insight:

The U.S. Equal Employment Opportunity Commission (EEOC) has said that "petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality," but harassment by a supervisor is viewed in a harsher light. In a case dealing with the alleged use of racial slurs in the workplace, the 7th Circuit noted that a supervisor's use of racially toxic language in the workplace is much more serious than a co-worker's. 

The EEOC has advised employers that the best way to eliminate harassment in the workplace is by preventing it from happening. The federal agency has suggested that employers:

• Clearly communicate to employees that unwelcome harassing conduct will not be tolerated.
• Establish an effective complaint or grievance process.
• Provide anti-harassment training to managers and employees.
• Take immediate and appropriate action when an employee complains.
• Create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed.
• Encourage employees to report harassment to management at an early stage to prevent its escalation.