Editor’s Note: Mr. Sayre is a member of the Labor and Employment Practice Group of Ward and Smith, P.A.
By now, most employers know that workplace harassment claims are an ever-present risk. In 2007, the Equal Employment Opportunity Commission received 27,112 charges of workplace harassment, up nearly 18% from just one year prior. Those charges resulted in $65.6 million in settlement payments by employers, with even more money spent in litigation costs. Despite these staggering numbers, many employers still fail to recognize the warning signs of a harassment claim before it is too late. Understanding what constitutes unlawful harassment and knowing how to stop it are the first steps to avoiding an expensive legal battle in the future.
Defining Harassment
Federal law defines harassment as unwelcome conduct that is based on race, color, sex, religion, national origin, disability, or age. Political affiliation is not a protected characteristic, and comments of a political nature generally are not considered harassment under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990. However, the simple fact that a comment references a political figure or a newsworthy event does not insulate it from harassment charges if the comment otherwise relates to a protected characteristic. Regardless of the context, offensive comments about race, color, sex, religion, national origin, disability, or age may be used as evidence of a pattern of harassment or discrimination. Employers are wise to take proactive steps to avoid them.
Examples of political discussions which may result in inappropriate comments in the workplace are all too common. Sometimes, one only has to discuss front page news to come perilously close to crossing the line. In the 1990s, the Clarence Thomas/Anita Hill hearings and the Monica Lewinsky scandal are shining examples of potentially dangerous workplace subject matter. More recently, jokes and comments about the travails of Idaho Senator Larry Craig, former New York Governor Eliot Spitzer, and former New Jersey Governor James McGreevey were floating around workplaces throughout the country. The nature of these scandals was indeed newsworthy, but each presented a delicate line over which one could easily cross into inappropriate and harassing speech simply by discussing the true details.
Determining the Line
So how far is too far? Federal law says that harassment becomes unlawful when: (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Harassing conduct includes a variety of verbal conduct such as offensive jokes, slurs, epithets or name calling, ridicule or mockery, insults or put-downs, or threats, whether made in person or communicated over e-mail, voicemail, computer systems, or otherwise.
In guarding against the risk of harassment claims, employers must understand the difference between comments made by supervisors and those made by non-supervisors, each having different legal ramifications. Under the law, employers automatically are liable for harassment by a supervisor that results in a tangible employment action such as termination, demotion, or a failure to promote or hire. If, however, a supervisor’s harassment results in a hostile work environment for an employee, the employer can avoid liability if it proves: (1) it reasonably tried to prevent and promptly correct the harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. By contrast, employers are liable for harassment by non-supervisory employees only if the employer knew or should have known about the harassment, but failed to take prompt and appropriate action to correct it.
Isolated incidents (unless extremely serious) and trivial or merely annoying innuendo, vulgar language, or offensive remarks generally do not rise to the level of actionable harassment. While such behavior should never be condoned, it is not harassment under the law. To support a claim by an offended employee, the harassing conduct must create a work environment that would be intimidating, hostile, or offensive to a reasonable person.
What Can Employers Do?
As election season heats up, employers should proactively take steps to curtail contentious political debates at work and be wary of particular comments related to race, age, gender, or any other protected characteristic in the course of such discussions. Employers should clearly communicate to employees that unwelcome political comments and commentary will not be tolerated, and, if one is not already in place, every employer should implement and publish a well-crafted harassment policy. Such policy should explain that harassment of any type will not be tolerated and include an effective mechanism to report complaints. This policy should cover harassment by anyone in the workplace – supervisors, co-workers, or non-employees – and should encourage employees to report harassment before it becomes severe or pervasive. Employers also should train employees, especially supervisors and managers, not to make comments or jokes that relate to protected characteristics. Finally, employers need to investigate promptly any allegations of inappropriate comments in the workplace and, if necessary, take appropriate action. This is especially true this time of year, when the very nature of the presidential race and the candidates may cause employees to unknowingly cross harassment lines.
Conclusion
If we have learned anything from the past, then we know that discussions about race, age, and gender likely are to be common in the workplace in the months and weeks leading up to the election. While some normal workplace banter is inevitable, especially about such a ground breaking presidential race, employers must be armed to prevent and take action against any inappropriate conduct that could ensue as a result. Otherwise, the next time you hear that ill-timed and insensitive Obama/McCain/Biden/Palin joke may be in a harassment complaint against your company.
© 2008, Ward and Smith, P.A.
Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Jeremy Sayre practices in the Labor and Employment Practice Group, where he focuses on employment counseling and employment litigation. Comments or questions can be sent to js@wardandsmith.com.
This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.
