Third Circuit Holds that Rude, Intimidating or Unconscious Bias Comments Do Not Meet the Title VII Standard for Hostile Work Environment Claim

In Gersen Gabriel v DSM Biomedical Inc. Case No. 25-2630 (3d Cir. Aug.13, 2926) a black factory manager claimed that the white Head of Safety discriminated against him by being rude, intimidating and making unconscious bias comments. In particular, Gabriel (the employee) alleged that the Head of Safety stated that he was surprised a black man was in charge of the Pennsylvania facility and that after a routine audit, targeted the facility and mistakenly criticized it for failing to follow a safety policy. The employee filed an EEOC Charge of Discrimination and after he sent alleged threats in a group chat, was suspended.

The Eastern District of Pennsylvania granted summary judgment to the employer and the employee appealed to the Third Circuit Court of Appeals. The Appellate Court dismantled the employee’s claim, one element at a time:

• First, the Appellate Court found that the alleged discriminatory acts were not linked to an adverse employment action – the employee did not establish sufficient evidence of harm – the employee’s job, salary, benefits, hours or other terms of employment had not been negatively impacted by the alleged discriminatory conduct and “mere emotional harm and stress” were not enough to establish an adverse action under Title VII.
• Next, the Appellate Court ruled that the alleged discriminatory incidents were not serious enough to rise to the level of severity and were not frequent enough to be pervasive. As the lower court ruled, “Sporadic instances of bullying or microaggressions … do not rise to the level of a hostile work environment as a matter of law.”
• Additionally, the Appellate Court found no evidence that the alleged incidents were motivated by race – they concluded that the “Head of Safety was known as rude and abrasive in general, not just to black workers” and concluded that Title VII does not ban mere rudeness or protection against abrasive bosses.
• Finally, the Appellate Court found that the employer’s legitimate, nondiscriminatory reason for suspending the employee was due to the perceived threats that the employee sent in a group chat to his coworkers and not retaliation for filing a Charge of Discrimination with the EEOC, despite the temporal proximity of the suspension to the filing of the Charge.
• The Appellate Court concluded that there was too little for a jury to “reasonably … disbelieve” [the employer’s explanation and ‘reasonably …. believe that [retaliation] was more likely than not” a factor in suspending him.

While employers can be assured by this ruling, employers should continue to properly respond to complaints of discrimination and hostile work environments, including to:

• Promptly and thoroughly review allegations of differential treatment based on a protected category;
• Assess whether the alleged discriminatory acts impact employment terms;
• Determine the scope and magnitude of the alleged discriminatory incidents;
• Confirm that employment decisions are based on documented legitimate reasons;
• Consider the timing of any protected activity in conjunction with an adverse employment action; and
• Take prompt remedial action to stop and prevent and future incidents of discrimination and remind all employees, especially supervisory employees to comply with workplace conduct rules.

Employers are encouraged to consider risk factors, potential claims and defenses when reviewing complaints of discrimination and potential employment actions that may be filed.

For more information, or for assistance, please contact Nancy Conrad, Partner, at 610.782.4909 or conradn@whiteandwilliams.com, or a member of our Labor and Employment Practice Group.