Jerry Sharpe-Miller sued Walmart, Inc., his former employer, alleging a variety of discrimination claims based on the anti-gay animus he alleged he endured while employed. After the district court granted summary judgment to Walmart on Sharpe-Miller’s claims, he appealed and the Tenth Circuit agreed with him that his hostile work environment claim should go forward.
In a matter of first impression, the Tenth Circuit held that it is possible that “a smaller number of discriminatory acts can also create a hostile work environment.” While the district court had ruled that a “steady barrage” of discrimination was necessary for a hostile work environment claim to go to trial, the Tenth Circuit rejected that formulation and instead lessened the burden on plaintiffs who allege they are subjected to discrete, independent acts of discrimination.
The takeaway here is that while all possible acts of discrimination are important and need to be addressed, employers need to pay close attention to whether a history or pattern of acts (even from different actors) have occurred such that an employee can claim a hostile work environment has developed. Employees now have an easier path to survive summary judgment on a hostile work environment claim.
