Tuesday, June 10, 2008

Unwelcome Conduct and Severe/Pervasive Abuse

I remember receiving a handout from a former employer, which provided this notation about workplace harassment: “Whether or not harassment took place should be viewed from the perspective of the victim and not the accused.”

In line with that, the EEOC says: There are two requirements for race-based conduct to trigger potential liability for unlawful harassment: (1) the conduct must be unwelcome; and (2) the conduct must be sufficiently severe or pervasive to alter the terms and conditions of employment in the mind of the victim and from the perspective of a reasonable person in the victim’s position. At this point, the harassing conduct “offends Title VII’s broad rule of workplace equality.”

So, let's define these 2 requirements a bit more...

Unwelcome Conduct – In cases of harassment, the conduct must be unwelcome in the sense that the alleged victim did not solicit or incite the conduct and regarded it as undesirable or offensive. When the conduct involves mistreatment or is racially derogatory in nature, unwelcomeness usually is not an issue, even when the alleged harasser and victim are of the same race. Sometimes employers argue that the conduct in question was not unwelcome because it was playful banter, and the alleged victim was an active participant. The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact, a willing participant.

Severe or Pervasive Abuse - To violate Title VII, racially abusive conduct does not have to be so egregious that it causes economic or psychological injury. Harassment must be analyzed on a case-by-case basis, by looking at all the circumstances and the context. Relevant factors in evaluating whether racial harassment creates a sufficiently hostile work environment may include any of the following (no single factor is determinative):

The frequency of the discriminatory conduct;

The severity of the conduct;

Whether the conduct was physically threatening or humiliating;

Whether it unreasonably interfered with the employee’s work performance; and

The context in which the harassment occurred, as well as any other relevant factor.

The more severe the harassment, the less pervasive it needs to be, and vice versa.

Accordingly, unless the harassment is quite severe, a single incident or isolated incidents of offensive racial conduct or remarks generally do not create an abusive working environment. But a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation, especially if the harassment is physical.

Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault), a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,” and a racial comparison to an animal.

Racial comments or other acts that are not sufficiently severe standing alone may become actionable when repeated, although there is no threshold magic number of harassing incidents giving rise to liability.

Source: http://www.eeoc.gov/policy/docs/race-color.html#VIIA

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2 Comments:

Anonymous Anonymous said...

is the following statement when describing my granddaughter's 3d sonogram pix, grounds for a "hostile work environment" termination? "we're curious to see if she'll be born with cornrows." In the 3d pix it looked like she had cornrows. My coworker took offense to it and I was terminated.

9:03 PM  
Blogger Margie said...

Sorry, there is no law against being obnoxious and rude, which is what the co-worker was guilty of. However, the employee may have violated company policy requiring professional behavior from employees.

5:02 PM  

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