Eighth Circuit: “Severe and Pervasive” Standard Clarified for Harassment Claims


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March 13, 2023



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Quick Look

  • To demonstrate “severe and pervasive” conduct for purposes of establishing a hostile work environment claim, an employee must show that the employer created a workplace that was permeated with discriminatory intimidation, ridicule, and insult.
  • More than a few isolated incidents are required to meet the threshold for “severe and pervasive” conduct.


In Walker-Swinton v. Philander Smith College, et al., the Eighth Circuit Court of Appeals said that in order to show that certain conduct rises to the level of “severe and pervasive” for purposes of a hostile work environment claim, an employee must show that the workplace was “permeated with discriminatory intimidation, ridicule, and insult.” If an employee cannot meet this high threshold, their claim for hostile work environment will not succeed.

Here, a non-tenured female college professor was terminated following an investigation into her conduct with students and alleged inappropriate remarks she made regarding a student’s use of a cellphone in class. She confiscated a student’s cell phone during a quiz, he left in frustration, and she subsequently remarked that it was “insane and retarded” for students to think they could use their phones during a test. After learning that the professor had called him a “retard,” the male student confronted the professor in a heated exchange that was ultimately separated by other students. After class ended, the male student encountered the professor’s nephew and his friends, which resulted in a serious physical altercation. The college opened an investigation, including witness interviews of pertinent individuals. When questioned, the professor omitted certain key facts, including that one of the male student’s attackers lived with the professor, that she had met with the attackers shortly before the altercation took place, and that the professor had attempted to “coach” several other witnesses who provided statements during the investigation. The investigation concluded that the professor had violated the school’s anti-harassment policy in connection with her use of the word “retarded.” Based on this determination, in conjunction with her omissions during the investigation and her attempt to skew the investigation through coaching several witnesses, the college elected to terminate the professor. Following her termination, the professor filed a lawsuit alleging a claim for hostile work environment.

In support of her hostile work environment claim, the professor pointed to three instances: the confrontation by the male student following her confiscation of his phone; threatening looks by the male student following the incident; and an occasion where the college’s attorney “snatched” the professor’s phone away from her. The Court determined that these noted instances fell markedly short of demonstrating the requisite standard for “severe and pervasive.”

The Court outlined that the threshold for demonstrating “severe and pervasive” conduct is to show that “the workplace [was] permeated with discriminatory intimidation, ridicule, and insult,” noting that this standard required “more than a few isolated incidents.” The Court also emphasized the professor’s own role in provoking the incidents with the student, noting that even if the professor’s cited examples were intolerable, her own conduct undermined her claim that the college created a workplace full of discriminatory intimidation, ridicule, and insult. Ultimately, the court determined that the professor’s examples of a hostile work environment were insufficient “to alter the conditions of [her] employment,” and therefore did not meet the requisite standard.


Action Items

  1. Review policies prohibiting harassment and discrimination in the workplace.
  2. Have appropriate personnel trained on receiving and evaluating employee complaints of harassment, discrimination, or a hostile work environment.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.


Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase