In recent years, the threshold for a harassment claim has been debate in the employment law arena, and it has even been discussed on the state legislative level. Currently, the minimum threshold is the conduct must be “sufficiently severe or pervasive for a reasonable person to find the work environment to be hostile or abusive.” This is not an easy hurdle to clear for employees, and many have said that it is too high in order to effectuate behavioral change in the workplace.
This was the issue in the Minnesota Supreme Court case of Henry v. ISD #625. There, the employee, who served for 20 years with good reviews, alleged she suffered a hostile work environment. She alleged that after a series of bad performance evaluations and improvement plans, her supervisor stated he was considering terminating her employment for failing to meet the terms of her performance improvement plan. Her supervisor allowed her to present a statement in her defense prior to him making his decision. However, after meeting with her union steward, the employee decided to retire at the age of 57.
Following her retirement, she sued the district for age discrimination under the Minnesota Human Rights Act. During depositions, Henry’s supervisor stated that her superior had instructed her to make it look like Henry was not meeting performance standards, and to pile extra work on Henry in effort to make her fail. Supervisors also admitted to using performance improvement plans to force employees out and that Henry was specifically targeted for performance issues. The general sentiment of those testifying was that older employees were being targeted to bring in new, younger staff. In addition to the performance management, Henry’s co-workers testified that Henry was called out for conduct that co-workers got away with, and that the director of the division would frequently belittle, mock, or yell at employees during meetings.
The district court found Henry did not pursue any administrative remedies prior to retiring and filing suit, and that Henry had not shown how she was the victim of any workplace behaviors that rose to the level of harassment based on age. The court of appeals, however, found that Henry presented sufficient evidence to withstand summary judgment for her age discrimination claim, but confirmed the district’s behavior did not rise to the level of a hostile work environment.
The Minnesota Supreme Court agreed that the conduct alleged was not sufficiently severe or pervasive so as to alter Henry’s work environment. There was no evidence of badgering or harassing conduct on the part of Henry’s supervisors. The Court stated that while the performance-related measures taken by the district were designed to make her quit, “they are a different form of discrimination than the type required to establish a hostile work environment.” As such, her claim alleging a hostile work environment failed.
The court had to determine whether Henry suffered from “objectively intolerable working conditions” necessary to establish a constructive discharge. Under a disparate treatment theory, the Court stated that an employee must suffer illegal discrimination in the form of unfavorable treatment based on her protected status, but not behavior so terrible that it forced the employee to resign. In other words, the employee need not show a hostile work environment to prevail on a constructive discharge claim. The Court found the employee resigned as a result of the employer’s announced intent to terminate her employment. As a result, she succeeded in establishing a constructive discharge. In addition, the Court refused to require the plaintiff to have notified her employer of the intolerable conditions she was experiencing, because the employer was “intentionally trying to get rid of [the] employee.”
Based on the testimony of Henry’s supervisor, the Court found a reasonable jury could find that the plaintiff suffered from disparate treatment at the hands of her employer. While the Court found that placing the employee on a PIP alone did not constitute intolerable conditions, sufficient evidence was provided to show that the PIP was either unreasonable or onerous. As such, Henry’s disparate treatment claim survived on summary judgment.
Performance management is crucial for every employer. It must be thorough, efficient, and aimed at actually improving or maintaining an employee’s performance. However, if an employee’s performance is going to be managed, it should not be done in an unfair manner in effort to get the employee out the door (most bad employees will do that on their own). If you, or your organization need guidance in managing your employee’s performance, contact Wiley Reber Law, for legal advice that works.