The Hostile Workplace EnvironmentThis section discusses both sexual harassment in the workplace and racial, national origin or ethnic discrimination in a hostile-workplace environment.
Hostile Workplace Environment: Sexual Harassment In The Workplace
Unwelcome Sexual Environment Hostile environment sexual harassment in the workplace is a situation in which the employer, supervisor, or co-worker does or says things that make the victim feel uncomfortable because of his or her sex. Hostile environment sexual harassment in the workplace does not need to include a demand for sexual favors. It is the creation of an "unwelcome environment." Such conduct often involves repeated use of sexual language (sexual epithets such as the 'f' word may even qualify as unwelcome harassment), but it of course may involve touching of an unwelcome personal nature.
Offensive Conduct The conduct - to be unlawfully unwelcome - must be "offensive." If two employees have a good time exchanging sexual jokes, it would not be sexual harassment in the workplace. If one employee kept telling another employee sexual jokes that the second employee found offensive, it "would" be sexual harassment in the workplace. If two employees dated and engaged in consensual sex, this would not be sexual harassment in the workplace. If one of the two then wanted to terminate the relationship, and the other used the unequal relative terms and conditions of employment of the workplace to further the relationship, this would be sexual harassment in the workplace.
Jokes, pictures, touching, leering, unwanted requests for a date have all been found by courts to be sexual harassment. Sexual harassment in the workplace can be between people of the same sex. In fact, in our experience recently it appears homophobic harassment is increasingly open in the workplace. Often, it occurs in the form of men harassing other men in graphic sexual terms. Sexual harassment in the workplace can also be a woman harassing a man, or women harassing women.
Hostile Workplace Environment: Race, National Origin, or Ethnic
Discrimination & HarassmentThe courts have held that if you are harassed in the workplace about your race, ethnicity, or national origin you may have the right to sue your employer. Discrimination and harassment go hand in hand here. Where there is discrimination in the workplace, there is also often times harassment in the workplace.
Severe & Pervasive Harassment & DiscriminationFirst, the discrimination or harassment in the workplace must be severe and pervasive. An idle comment, even if, offensive is not the basis for a lawsuit. Ongoing use of the "N" word could be severe and pervasive in the context of unlawful racial harassment. Having derogatory words and racial or ethnic slurs written on the bathroom walls could be severe and pervasive. One has to look at it on a case by case basis.
Management Awareness Next the conduct must be carried on by management or management must know about it and have had an opportunity to stop it and in fact, do not. In other words, management condones the behavior.
Report The Behavior If a fellow worker is the one doing the discrimination and harassment, you should follow the company policy and report the conduct to your supervisor and Human Resources. Report it in writing to have proof of the date you reported it, and be sure to be specific about the exact nature of the discrimination or harassment. Saying things like Joe is bothering me or harassing me is not sufficient. Also, saying that Joe called me the "N" word once is insufficient. Don't retaliate back, or you can be fired.
Anyone who is offended by a discriminatory or sexually harassing hostile environment may theoretically sue. However, the affected employee's sensibilities must be reasonable. An extremely sensitive person might not be able to maintain a claim, if his or her feelings that have been offended were not reasonable.
Damages In Discrimination or Sexual Harassment In The Workplace Cases: Victims of discrimination in the workplace or sexual harassment in the workplace can recover for their lost wages, future lost wages, emotional distress, punitive damages, and attorneys fees.