How to Prove Workplace Discrimination — Part 2

Hostile Work EnvironmentIn Part 1 of this article, we discussed intentional workplace discrimination claims which involved tangible employment action (firing, demotion, etc.) being taken against the employee. In Part 2, we will now discuss claims based solely on harassment. Harassment claims are based on abusive treatment by co-workers and supervisory employees, and are also known as hostile work environment claims. In the case of gender discrimination, they include “quid pro quo” claims — claims that the employer offered preferential treatment (or threatened negative treatment) if the employee did not perform sexual favors or put up with sexually inappropriate behavior.

Workplace Harassment Claims Overview

For a workplace harassment claim to be actionable, the harassment the employee suffers must be due to that employee’s membership in a protected class. While your work environment may be “hostile” in the conventional sense of the word, it is not a hostile work environment from a legal perspective if you are being harassed for reasons that have nothing to do with discrimination. Workplace discrimination laws are not a code of civility for the workplace. If your boss abuses you because he just doesn’t like you, he has not violated any laws prohibiting workplace discrimination. The same is true if your boss treats all employees badly. As long the harassment is distributed on an “equal opportunity” basis, you can’t sue for discrimination.

Note that the harassment itself does not need to take the form of words and actions directly related to the harassed employee’s protected class (e.g., racial slurs or sexual references). It is enough that the employee’s membership in a protected class was the motivation for the harassment. For example, male co-workers harassing a female employee need not make sexual comments or inappropriate gender references to create a hostile work environment. If they torment her through other means (e.g., leave a dead animal in her desk drawer), they are still creating a hostile work environment as long as the motivation for their tormenting behavior is her status as a woman.

Proving a Hostile Work Environment Claim

The manner in which you prove a hostile work environment claim depends on whether you are being harassed by a co-worker or by a supervisor. For purposes of discrimination cases, a “supervisor” is a person who has the right to hire, fire, promote, demote or discipline the employee. Remember that all employment discrimination claims are against your employer, and an employer will only be liable for conduct that can fairly be attributed to it by way of its policies and practices, or through the actions of its supervisory-level employees. As an initial matter, courts handling harassment cases have made it quite clear that simple teasing, offhand comments or isolated incidents of bad behavior (of a non-severe nature) directed at you due to your membership in a protected class will not give rise to a hostile work environment claim. Only harassment which is severe or pervasive will suffice. “Severe” cases would include those when a single act of harassment threatens the employee’s physical safety or results in unwanted and unreasonable physical contact. For typical cases, the harassment does not need to be so extreme that it drives the employee to a nervous breakdown, or to quit his or her job (known as “constructive discharge”). It is enough that the harassment unreasonably interferes with the employee’s ability to do his or her job.

Proving a Hostile Work Environment Claim When the Harassers are Co-Workers

Proving a hostile work environment claim when your harassers are non-supervisory co-workers requires a showing that the employer knew or should have known of the harassment and failed to take reasonable corrective action. To preserve his or her right to sue for discrimination based on a hostile work environment, an employee would be wise to report all harassment to the employer. This way, the employer cannot later argue that it didn’t know, and shouldn’t have known, that the harassment was taking place.

An employer must take reasonable corrective action after being notified of harassment to avoid liability for workplace discrimination. What constitutes “reasonable” corrective action will depend upon the frequency and severity of the harassment, but is generally defined as a measure reasonably designed to discourage and prevent further harassment.

Proving a Hostile Work Environment Claim When the Harasser is a Supervisor

As stated earlier, for workplace discrimination purposes a “supervisor” is defined as one who has the power to hire, fire, promote, demote or discipline the affected employee. If a supervisor creates a hostile work environment which results in tangible employment action (covered in Part 1 of this article) against the employee, the employer is liable for the harassment as if the supervisor acted on its behalf with its full knowledge and consent (the legal term is “vicariously liable”).

If the supervisor creates a hostile work environment which does not culminate in tangible employment action against the employee, the employer has a defense which may allow it to avoid liability for the supervisor’s actions. If the employer (1) has a written harassment policy informing employees of their right to file complaints and (2) the employee fails to use this policy to notify the employer of the supervisor’s harassment, the employer can avoid liability. For this defense to be valid, the employer’s written policy must be genuine and it must be the employer’s practice to act on employee complaints under the policy. If the employee can show that it would have been futile to file a complaint under the policy — whether because the policy requires that complaints go through the harassing supervisor or the employer has a history of ignoring complaints — the employer’s “harassment policy defense” can be avoided.

A Special Type of Sexual Harassment Claim — The Quid Pro Quo Claim

In addition to the hostile-work-environment-type sexual harassment claim, employees who allege gender discrimination have another type of claim at their disposal — the quid pro quo claim. To prove a quid pro quo claim, the employee must prove that she (or “he”, but most often it will be “she”) was subjected to unwelcome sexual advances, requests for sexual favors or other physical or verbal conduct of a sexual nature and (1) submission to this conduct was made either explicitly or implicitly a term or condition of the plaintiff’s employment, or (2) submission to or rejection of such conduct by the plaintiff was used as the basis for employment decisions affecting the plaintiff. An obvious example would be if a supervisor offers an employee a promotion conditioned upon the employee having sex with the supervisor.

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If a supervisor has a consensual sexual relationship with a subordinate, and gives that subordinate preferential treatment, most courts do not consider this to be actionable under gender discrimination laws. This is mainly due to the fact that (1) both male and female employees are disadvantaged by the preferential treatment, so it is not gender-based discrimination and (2) it is the supervisor’s specific relationship with the employee which caused the preferential treatment, not the employee’s gender in general.

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