By their statutory language, neither Title VII nor the federal Age Discrimination in Employment Act (“ADEA”) explicitly prohibit workplace harassment based upon gender, race, nationality, religion, age, or other protected class characteristics. For example, Title VII prohibits discrimination with respect to “compensation, terms, conditions, or privileges of employment,” but no mention is made of workplace harassment based upon any of these characteristics.   

Some lower courts as far back as 1971 read into Title VII the provision that “terms, conditions, or privileges of employment” includes prohibiting a discriminatorily hostile or abusive workplace environment.  For example, one court eloquently stated that Title VI should be liberally construed, and therefore the “terms, conditions, or privileges of employment:"

"evinces a Congressional intention to define discrimination in the broadest possible terms. Congress chose neither to enumerate specific discriminatory practices, not to elucidate in extensor the parameter of such nefarious activities. Rather it pursued the path of wisdom by being unconstrictive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustice of the morrow."      

The Supreme Court finally recognized this principle in 1993, as it applied to sexual harassment.  Thus was eventually born the various theories of liability such as quid pro quo sexual harassment. Courts expanded Title VII’s reach to include harassment based upon characteristics other than gender and race.    

The latest change in the law has occurred in a case filed in Louisiana, where a federal appeals court has held for the first time that “a plaintiff’s hostile work environment claim based on age discrimination under the ADEA may be advanced in this court.”   The court set out the elements of such a claim: (1) the plaintiff is over 40; (2) (s)he was subjected to harassment based upon age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability.    

Add this claim to the ever growing list of workplace actions which must be guarded against.