The Fifth Circuit’s Prescription for Employers About Hostile Work Environment Claims
I am an avid fiction reader, and an opinion I read yesterday reminded me of a book I read years ago by author Jodi Picoult—Small Great Things.
The main protagonist in the novel, Ruth, is a labor and delivery nurse with twenty years of experience. In the story, Ruth cares for a newborn baby. The baby’s parents see Ruth, who is Black, and have the hospital bar Ruth from caring for their infant because they are self-identified white supremacists. Ruth is upset but she complies, and the plot continues.
Now back to the law.
In the opinion I read, the U.S. Court of Appeals for the Fifth Circuit reinstated a claim by a Black certified nursing assistant (CNA) alleging, among other claims, that his employer pulled him off cases when patients said they didn't want care from Black hospital staff.
While the Fifth Circuit affirmed the dismissal of most of the CNA’s claims for discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII) and 42 U.S.C. § 1981, the court vacated the summary judgment decision on his Title VII hostile work environment claim and remanded the case.
The case is Dike v. Columbia Hosp. Corp., No. 24-40058 (5th Cir. 2025).
What’s the difference then? Why did the court dismiss one claim and not the other?
Let’s Get Into It - What Are the Facts?
As a preliminary matter, it’s important to note that the plaintiff in this case was the only Black CNA on staff.
The nurse/plaintiff alleged that he faced discrimination based on race, color, and national origin, citing disparate treatment in lunch break coverage, hostility from his coworkers, and a specific incident involving a co-worker’s discriminatory behavior.
The plaintiff also claimed that he was subjected to a hostile work environment due to race-based work assignments from another CNA (and an edict that the plaintiff stay at least 12 feet away from him), racial slurs, derogatory comments, and insufficient remedial actions by his employer.
The Discrimination Claim
The court applied the burden-shifting framework of McDonnell Douglas Corporation v. Green, which, as a reminder, requires the plaintiff to establish a prima facie case of discrimination. If successful, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its actions. The plaintiff must then prove that the employer’s reason was pretextual.
I wrote about the burden-shifting framework here in a similar Fifth Court case that had a different outcome.
The court found that the coworker hostility incidents and complaint referral did not constitute adverse employment actions and lacked evidence of similarly situated non-Black CNAs being treated more favorably.
Further, while the court acknowledged the plaintiff’s co-worker’s discriminatory animus, it found no evidence that the co-worker’s allegedly discriminatory behavior influenced any decisionmaker at the hospital group.
There was not enough there to establish pretext.
Photo by National Cancer Institute on Unsplash
So Why Was The Ruling Dismissing the Hostile Work Environment Claim Vacated?
The Fifth Circuit identified several errors in the district court’s analysis, including the exclusion of the plaintiff’s deposition testimony as “self-serving” and the failure to consider the cumulative effect of the alleged harassment.
The court emphasized that self-serving testimony is admissible if it meets Rule 56 requirements and that the totality of the circumstances must be considered in a claim alleging a hostile work environment.
With its decision to remand, the Fifth Circuit noted that the district court improperly excluded evidence of second-hand harassment and co-worker mockery, which the plaintiff testified he witnessed.
Moreover, the court found that the district court did not adequately address whether the hospital employer’s actions constituted prompt remedial action and whether the cumulative effect of the harassment was severe or pervasive enough to alter the terms and conditions of the CNA’s employment.
In vacating the summary judgment on the plaintiff’s Title VII hostile work environment claim, the Fifth Circuit highlighted the need to consider the totality of the circumstances and the admissibility of self-serving testimony in evaluating hostile work environment claims. This decision underscores the importance of a comprehensive analysis of all evidence and circumstances in employment discrimination cases.
Employer Takeaways
This decision really emphasizes the importance of a comprehensive approach to addressing workplace harassment and discrimination. Takeaways include:
Hearsay can create factual issues, precluding summary judgment. Indeed, the Fifth Circuit emphasized, and employers should be aware, that self-serving testimony is admissible on summary judgment if it meets the standard requirements of Federal Rule of Civil Procedure 56. Such testimony can create fact issues even if not supported by the rest of the record. How can an employer still obtain summary judgment in the face of self-serving testimony? By thoroughly documenting all interactions and decisions related to employee complaints and disciplinary actions.
Consider the totality of the circumstances. The Fifth Circuit stressed the necessity of considering the cumulative effect of all incidents of alleged harassment rather than assessing each incident in isolation. Doing so helps an employer identify patterns of behavior that may contribute to a hostile work environment.
And, remember, “second-hand harassment,” harassment directed at other employees that the complainant witnesses, is part of the totality of the circumstances.
Deferring to patient or customer or client preferences can contribute to a hostile work environment. Employers should have clear policies that prohibit making work assignments based on race or other protected characteristics. It is crucial to communicate to both employees and clients that discriminatory preferences will not be accommodated. The Fifth Circuit criticized the practice of deferring to patient racial preferences, as it can contribute to a hostile work environment.