When defining what conduct constitutes a hostile and offensive working environment under Title VII, the U.S. Supreme Court directs lower courts to look at the context of the behavior in the specific workplace at issue. Behavior that would be considered unacceptable in one work environment might be more tolerable in another. This guidance has been used by employers with especially challenging work environments to defend claims that they tolerated a hostile work environment. Last week, the Third Circuit Court of Appeals demonstrated the limits of defending workplace conduct based on the nature of the work performed.

In Davis v. Elwyn of PA and DE, the plaintiff was a mental health worker at a psychiatric care facility. She was assigned a patient with severe psychiatric disorders who continuously subjected her to sexualized conduct and racial insults. Upper management, allegedly against her supervisor’s recommendations, instructed the plaintiff to continue with the patient’s treatment plan and ignore the harassing behavior. She was eventually terminated for care issues associated with the patient and filed suit, claiming that she was subjected to a hostile and offensive work environment based on sex and race.

The district court dismissed the suit, noting that the context of this workplace and job meant that employees were exposed to patient behavior that would not be acceptable in most environments, but in this situation were an unavoidable part of providing mental health services to this population. The Third Circuit disagreed, reversing the lower court’s decision and remanding the case for trial. The court noted that there were genuine factual issues as to whether the employer could have done more to minimize the impact of the patient’s behavior on the plaintiff. In support of this conclusion, the court noted the plaintiff’s direct supervisor’s disagreement with management’s continuous instructions to continue working with the patient regardless of his behavior or its impact on the plaintiff.

Even in challenging work environments, employers are expected to take reasonable steps to protect employees from exposure to offensive conduct. While some jobs may require that workers put up with behavior that would be considered unacceptable in most workplaces, companies still need to take measures to minimize the impact of such behavior to employees on the receiving end.

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