It’s not always easy to know when inappropriate behavior becomes illegal harassment. While a single offensive comment alone may not be enough to justify a claim, there isn’t always a clearcut test for harassment. In the accompanying story beginning on page 1, the jury found that racial harassment had occurred, but the results in similar circumstances have been different.
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In another recent case, an employee of a land developer convinced a jury she’d been sexually harassed. She recounted the occasional offensive sexual jokes and banter at her expense during her four months’ tenure. She also said there were periodic, sexually suggestive references to nearby real estate like “Twin Peaks” and “Titsville.” When she complained, a supervisor told her she was being paid great money for a woman.
But a federal court in Ohio overturned the $250,000 jury award in her favor, pointing out that although the comments were offensive and inappropriate, the federal anti-discrimination laws were not designed to purge the workplace of all vulgarity.
What Makes A Work Environment Hostile?
The central issue in these cases is whether a reasonable person in the employee’s position would feel a hostile or abusive environment existed. The situation as a whole must be considered, including:
- The frequency and severity of the conduct.
- Whether the conduct is physically threatening or humiliating, or merely an offensive statement.
- Whether the conduct unreasonably interferes with the employee’s work performance.
Generally, the more outrageous the conduct, the less often it has to happen to qualify as “illegal.” For example, according to the Equal Employment Opportunity Commis- sion, a single extreme act like offensive touching of someone’s intimate body areas may be enough. But in general, repeated incidents are required to make the case that harassment is occurring.
If the alleged harassment consists of verbal conduct, the following factors may also be considered:
- Whether the harasser singled out the employee.
- Whether the offended employee participated.
- The relationship between the parties.
- Whether the remarks or actions were hostile and derogatory.