June 27, 2024
State Trends: Redefining Unlawful Harassment
In this case, the employer won. But don’t rely on or take too much comfort in this outcome. Here’s the short story.
Two coworkers talk to one another, joking, using a racial slur. A third coworker overhears the conversation and is offended by the use of the racial slur. Coworker #3 files a lawsuit alleging he was subjected to a hostile work environment. The court looked at the factors that determine whether the conduct complained of meets the definition of unlawful harassment under Title VII of the Civil Rights Act of 1964, including whether it was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” In this case, the court said it was not.
Perhaps that is not so surprising. Even the EEOC’s website reads, “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.”
So, what’s the point? A trend is underway at the state level to relax and broaden the definition of unlawful harassment. So far, at least four (4) states have done so – CA, CO, MD, & NY. For example, in October 2022, a new Maryland law took effect that defines unlawful harassment to include “unwelcome and offensive conduct, which need that not severe or pervasive.” So, the point is, demand workplace respect and civility or you may find that an isolated remark or joke lands you in hot water.
- Remind employees that intent is not an element of unlawful harassment, as the above case illustrates.
- While this court pointed out that the comment was not directed at Coworker #3, a hostile environment can be created by indirect jokes, remarks, or comments. And telling a coworker, “If you don’t like it, don’t [look/listen]” is not an acceptable response.
- Train your staff so they understand their rights, responsibilities, and resources.
- Train your managers so they know what to watch/listen for and how to promptly and appropriately respond to unprofessional conduct.
