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Workplace discrimination must be severe or pervasive

The difference between a workplace discrimination claims and having to deal with a difficult boss or coworkers can sometimes be less than clear. Are activities of supervisors discriminatory or are they, as the Supreme Court has described it, the "ordinary tribulations of the workplace."

A recent case involved discrimination claims directed against the Merit Systems Protection Board (MSPB). The MSPB is the federal agency that has oversight for responsibility for federal workers and the Civil Service system, including reviewing allegations of prohibited employment practices and employee grievances. The Court of Appeals for the District of Columbia found the employee failed to show a supervisor's behavior rose to the level of discrimination.

The employee alleged she was subjected to a hostile work environment. A hostile work environment occurs when behavior such as "intimidation, ridicule, and insult" becomes "sufficiently severe or pervasive" that it changes the employee's conditions of employment.

Here, the court found that the behavior of the woman's supervisor was neither severe nor pervasive enough to create an abusive work environment. Comments on her reviews were not uniformly negative and some included a factual basis, and provided ways in which she could improve. The court described an isolated outburst by her supervisor as "frustration" and not part of an active campaign of discrimination.

These claims are evaluated by a "totality of the circumstance" test, where the court looks for patterns of discrimination and repeated or concerted activity by employers to abuse employees.

If you feel you are being subjected to discrimination that is severe or pervasive, you may want to discuss your facts with an employment law attorney who can provide guidance as to the types of conduct that may demonstrate discrimination and help you determine if you have a viable case.

Source: FedSmith.com, "Unprofessional, Uncivil and Somewhat Boorish," Susan McGuire Smith, May 4, 2014

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