Microaggressions at Work: 4 Important Court Rulings

Microaggressions at work are everyday slights, insults, putdowns and offensive behaviors that, cumulatively, take a toll on employees from underrepresented communities.

They can be accidental – or intentional. Either way, left unchecked, microaggressions in the workplace can negatively impact careers, reduce employee engagement and lead to burnout.

And if that’s not enough to give pause, allegations of microaggressions at work are now appearing in lawsuits against employers.

Here are four examples – and what HR can learn from them:

1. Workplace Microaggressions Over Disability Accommodations

An employee who worked at East Carolina University believed she suffered from a hostile work environment as a result of “microaggression, harassment and retaliation.”

She sued the employer as a pro se litigant, meaning she filed on her own, without the help of an attorney. Her lawsuit asserted claims of hostile work environment and FMLA retaliation.

Lawsuit: Supervisors Committed Microaggressions, Too

Specifically, the employee alleged that she had Type 2 diabetes, and that her colleagues and supervisors resented that she had accommodations and also needed FMLA leave because she was at heightened risk during the pandemic. She claimed that she endured ridicule due to her ADA accommodations and FMLA requests.

She also asserted that she was repeatedly yelled at, written up and threatened with termination over absences and tardiness, despite having medical documentation. She further alleged that she complained to the employer, but it failed to put a stop to the microaggressions and bullying dished out by her colleagues and supervisors.

Harassment Based on Disabilities

To state a prima facie case for an ADA hostile work environment claim, she had to show:

• She is a qualified individual with a disability
• She was subjected to unwelcome harassment
• The harassment was based on her disability
• The harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment, and
• Some factual basis exists to impute liability for the harassment to the employer.

The court said she stated a valid claim, noting that she plausibly asserted claims of harassment based on her disability. Notably, the court pointed out, the employee claimed that supervisors were among the alleged perpetrators and the employer looked the other way at the alleged misconduct. A reasonable jury could find the employer liable for the alleged harassment, the court held. As such, it allowed the hostile work environment claim to proceed.

The court also allowed the FMLA retaliation claim to proceed, noting that a reasonable jury could find that she faced retaliation for seeking FMLA leave alongside her ADA accommodations.

The case was remanded for further proceedings against the employer.

Lesson: This court decision shows that alleged microaggressions based on an employee’s disability can support claims of hostile work environment and FMLA retaliation.

What HR can do: When an employee has an ADA accommodation or takes FMLA leave, HR has to be involved to ward off any potential problems with colleagues or managers being upset – and potentially lashing out – over the accommodation or leave. Employment attorney Edward Harold previously shared with HRMorning an appropriate way to respond when an employee is upset over a co-worker’s accommodation: making a general statement along the lines of, “We try to work with all our employees to help them be successful and we know you would want us to do the same for you if a situation arose in which you needed that consideration.”

Bellamy v. E. Carolina Univ., No. 4:22-CV-115-D, 2023 U.S. Dist. LEXIS 236430 (E.D.N.C. 11/15/23).

2. Complaints About Microaggressions Lead to Termination

In New York, an employee identified several microaggressions that, in her view, showed bias against her as a Jewish person.

Questionable Comments

For example, in late 2019, the employee and her supervisor discussed a vacant position on the team. The employee suggested a colleague who was also Jewish for the role. The supervisor allegedly responded by saying she didn’t “want an old Jewish woman running a multicultural department.” She also allegedly said she wanted the Jewish colleague to be “fired or forced to quit.”

In another instance, a colleague allegedly commented that there were “too many white Jewish CEOs in positions of power and it was time to get them out.”

More Examples of Microaggressions at Work

In early 2020, the company produced T-shirts that proclaimed a commitment to fighting various forms of bigotry and racism. But anti-Semitism was not included in the initiative, the employee said.

She also noted one instance where an “all-staff” meeting was scheduled on a Jewish holiday.

Then in mid-2020, the employee contacted company leaders about establishing an Employee Resource Group (ERG) for Jewish people. The company already had several ERGs for other populations, including Latino, Black and LGBT employees.

Even so, company leaders raised concerns about the proposed ERG and dragged their feet during the approval process. Over the next few months, the employee followed up on the ERG-approval process, to no avail. In October and November, the employee sent emails stating the need for a Jewish ERG to address anti-Semitism and microaggressions.

On Nov. 30, the employee was fired for “poor performance,” including “a lack of organization, failure to communicate timely, weak writing skills and a lack of sensitivity to DEI issues.”

Prior to termination, she had not received negative feedback on her performance reviews. Moreover, she was not put on a performance improvement plan, as recommended by company policy.

In addition, she was offered a severance agreement in exchange for a release of claims against the company. Relevant here, company policy says employees may receive severance benefits for eligible terminations, such as “a reduction in force, a reorganization or elimination of position, but not for ‘unsatisfactory performance’.” (Emphasis in original.)

The employee declined the severance offer and filed a complaint with the EEOC.

Meanwhile, the company posted a job opening for a similar position.

Then, the company “suddenly expressed renewed interest in the Jewish ERG” after a long period of no movement, the court later pointed out, referring to an email that was sent immediately after the company received notice of the employee’s EEOC complaint. The email asked for “a quick update on the status of [the Jewish ERG] launch.”

Discrimination & Retaliation Claims

Ultimately, the employee filed a lawsuit. Among other things, she alleged the company fired her and retaliated against her because she’s Jewish.

The court analyzed the claim under the familiar burden-shifting framework outlined in McDonnell Douglas Corp. v. Green.

Here, the employee stated a valid prima facie claim of discrimination, so the burden shifted back to the company to state a nondiscriminatory business reason for its decision, the court explained.

When the company stated its business reason for termination (here, poor performance), the burden shifted back to the employee. She had to show the proffered reason was a pretext for bias.

She made that showing, the court said, because the “timing and context of the ‘performance’ concerns” cited by the company give rise to an inference of illegal discrimination. Simply put, the supervisor never raised performance concerns until the employee started advocating for the creation of a Jewish ERG.

As such, a reasonable jury could find the termination was, at least in part, motivated because the employee is Jewish, the court decided.

The employee also alleged the company retaliated against her for advocating for the Jewish ERG and complaining about microaggressions against Jewish employees at the company.

After going through the same burden-shifting framework, the court held a reasonable jury could conclude the employee “was fired in retaliation for complaining about anti-Semitism and promoting a Jewish ERG to address it.”

The case was allowed to proceed.

Lesson: This court decision shows that microaggressions can support claims of discrimination and retaliation.

What HR can do: It’s up to HR to set the tone of an organization. To lead by example, be aware of your own words or actions. And if you’ve inadvertently committed a microaggression, model accountability for employees. Listen to the individual’s comments with the intent to understand their perspective – and not to reply.     

de Souza v. Planned Parenthood Federation of America, Inc., No. 21 Civ. 5553 (LGS), 2023 WL 2691458 (S.D.N.Y. 3/9/23).

3. Employee Says She Endured Racially Motivated Microaggressions at Work

In Virginia, a Black employee claimed white co-workers committed microaggressions and discriminated against her on the basis of her race. But she didn’t provide many specific details about the alleged misconduct. She also claimed that she tried – and failed – to get the employer to implement DEI initiatives.

Regarding one alleged incident, she complained to HR about a white co-worker who allegedly “shook her finger in [the employee’s] face.” HR set up a peer mediation session, but the employee wasn’t satisfied with the response, as it allegedly didn’t resolve the toxic work environment or the harassment she endured.

The following month, the employee was told that “her services were no longer needed.”

She filed a complaint with the EEOC, alleging she “was subjected to racially motivated microaggressions” by a white co-worker and that HR failed to “investigate or correct the problem.”

She then sued under Title VII, but the court dismissed her claim.

To state a valid Title VII claim, the employee had to show, among other things, that she was treated differently than similarly situated employees outside her protected class.

Here, the court said the employee’s “allegations are wholly insufficient and lacking in any factual detail” that would allow a jury to conclude that she was treated differently based on her race. Her claim that HR set up a peer mediation session to address “one microaggression,” but otherwise did not take any steps to stop the perceived harassment did not “rise above speculation,” the court said. Case dismissed.

Lesson: This ruling shows that vague accusations don’t cut it in court. Employees who pursue legal claims are going to have to give specific details outlining their side of the story to get their case to a jury.

What HR can do: You’ve undoubtedly heard this before, but the answer here is document, document, document. Be prepared to give your own detailed account of exactly what happened, including the employee’s perspective of the situation, HR’s response to the complaint and the outcome.

Howard v. Blue Ridge Health Dist., No. 3:22-cv-00003, 2023 WL 2541132 (W.D. Va. 3/16/23).

4. Employee’s Solution to Microaggressions: Ghost the Employer & Sue

A Black employee in New York said she noticed “supremacist behavior” and was subjected to racially motivated microaggressions from the start. Her co-workers’ alleged comments contained stereotypical views about Black employees, particularly about women of color.

Among other things, she said her co-workers frequently complained about former employees of color who “smelled” and “only worked long enough to get unemployment.” She claimed they used racial slurs and made racist jokes. She said she felt “put on notice” by the comments made about other Black people and said she was the “first to be accused of mistakes.” She claimed she tried to discuss the matter with her supervisor three times, but he allegedly “failed to hear her grievances.”

The employee said that on Jan. 9, 2020, she “went into a full depressive episode.” She stopped going to work that day.

The next day, the general manager purchased the company. As the new owners, he and his wife reached out to the employee and told her to come back to work with a doctor’s note. She did not reply. Then, on Jan. 17, 2020, the general manager “terminated [the employee] via text.”

The employee filed a complaint with the EEOC and later sued the company as a pro se litigant (meaning she filed on her own behalf without the help of an attorney). There were a couple of procedural issues with her claim, but the court overlooked those problems and said even if she had filed the lawsuit on time, the claim still would’ve failed.

To state a valid race discrimination claim under Title VII, the employee had to show, among other things, that she had at least some evidence showing the employer “acted with discriminatory motivation.”

She alleged that she was terminated by text, but she didn’t provide any evidence suggesting that the decision to fire her was based on racial bias, the court said. Nor did she allege the employer made any race-based remarks as part of the termination.

Moreover, the employee’s own complaint admitted that she stopped showing up for work and did not respond to the employer’s attempt to reach out to her.

The employee failed to state a valid race discrimination claim, the court said. Case dismissed.

Lesson: This outcome shows that employers’ hands aren’t tied when employees decide to ghost the company over perceived misconduct.

What HR can do: This probably sounds like a no-brainer, but this case provides a clear reminder to always keep things professional – especially when the circumstances are frustrating. It’s important to point out that we don’t know exactly what happened in this case. It didn’t play out in court, so we don’t know whether the allegations would’ve been proven true. Here, what we can say is that the new company owner tried to reach out to an employee, to no avail. Based on what we know, it looks like the owner kept this termination professional, which ultimately played a role in the court’s decision to dismiss the claim against the company.

Dubie v. Buffalo Concrete Accessories, Inc., No. 21-CV-744-LJV, 2022 WL 17822125 (W.D.N.Y. 12/20/22).