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What the Term "Hostile Work Environment" Means in the World of Title VII Discrimination
 

What the Term "Hostile Work Environment" Means in the World of Title VII Discrimination

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    What the Term "Hostile Work Environment" Means in the World of Title VII Discrimination What the Term "Hostile Work Environment" Means in the World of Title VII Discrimination Presentation Transcript

    • What the Term “Hostile Work Environment” Means in the World of Title VII Discrimination Sarah H. Arnett October 17, 2013 Boise, Idaho IDAHO EMPLOYMENT LAW SEMINAR parsonsbehle.com
    • • The term “hostile work environment” is often misapplied by employees complaining about: • A co-worker who is generally obnoxious • A personality clash with a co-worker or supervisor • Cliquey co-workers, or coworkers who shun him/her • A demanding, nitpicky supervisor • An employer simply enforcing performance standards • A negative performance review What Is A “Hostile Work Environment” ? 2
    • • Hostile work environment is a form of workplace discrimination prohibited by Title VII of the Civil Rights Act of 1964 What Is A “Hostile Work Environment” ? 3
    • • Title VII prohibits employment discrimination based on an employee’s race, color, religion, sex, or national origin TITLE VII 4
    • 42 U.S.C.A. § 2000e-2 (Title VII) § 2000e-2. Unlawful employment practices (a) Employer practices It shall be an unlawful employment practice for an employer-- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. . . . TITLE VII 5
    • • Title VII is not a general civility code • Title VII is not intended to protect against “the ordinary tribulations of the workplace” TITLE VII 6
    • Title VII covers: • All federal agencies; • All state and local government agencies with fifteen (15) or more employees who worked for the agency for at least twenty (20) calendar weeks during either the current or preceding year; and • Private employers who have fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year • Smaller private employers lacking the requisite number of employees can avoid having to defend a Title VII charge of discrimination Title VII Does Not Apply To All Employers 7
    • • Title VII’s prohibition against employment discrimination includes a prohibition against supervisors’ or co-workers’ creation of a work environment which is hostile due to discriminatory intimidation, ridicule, and/or insults based upon an employee’s race, color, religion, sex, or national origin HOSTILE WORK ENVIRONMENT 8
    • • To establish a claim for hostile work environment which violates Title VII, an employee must show the following: • (1) The employee has been subjected to discriminatory harassment based on (“because of”) his/her race, color, religion, sex, or national origin; • (2) The harassing conduct is unwelcome; • (3) The harassing conduct is offensive; and • (4) The harassment is sufficiently severe or pervasive to alter the conditions of the employee’s employment and thereby create an abusive working environment Elements Of A Hostile Work Environment Claim 9
    • Conduct Which Is Discriminatory Harassment Violating Title VII Discriminatory harassment violating Title VII may consist of a range of conduct, if the conduct is sufficiently severe or pervasive including, but not limited to: Offensive jokes Ridicule Slurs Mockery Epithets Offensive objects Name calling Graffiti Disparaging remarks Sexual touching or assault Verbal intimidation Physical threats, intimidation, or battery Posting or distribution of pornographic or racist materials Interference with the ability to carry out job duties Interference with workplace safety ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 10
    • • Whether or not conduct is discriminatory harassment and sufficiently severe or pervasive to establish a hostile work environment violating Title VII is determined on a case by case basis – i.e. depending upon the facts and circumstances of the specific case ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 11
    • • The U.S. Supreme Court has explained the requirements for establishing a Title VII hostile work environment claim are intended to filter out claims simply attacking “the ordinary tribulations of the workplace such as the sporadic use of abusive language, gender-related jokes, and occasional teasing” • The Ninth Circuit Court of Appeals has emphasized: “an isolated incident of harassment by a co-worker will rarely (if ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship” • Title VII does not prohibit “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and the opposite sex” ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 12
    • Conduct Which Is NOT Discriminatory Harassment Violating Title VII Workplace conduct, which, although inappropriate, but which does not establish a hostile work environment violating Title VII often includes: • Simply causing an employee offense based on an isolated offensive comment • Simple teasing • Offhand comments • Occasional or isolated flirting (not if supervisor implies must submit to advances) • Isolated incidents of unwelcome touching or remarks (unless extremely serious) • Equal opportunity bullying or co-worker intimidation (as long as not motivated by discriminatory animus prohibited by Title VII) • Equal opportunity crude, obnoxious co-worker • Equal opportunity gruff supervisor • Ostracism suffered at the hands of coworkers (an employer cannot force employees to socialize with one another) unless the conduct is motivated by discriminatory animus prohibited by Title VII ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 13
    • • To establish a Title VII hostile work environment claim, the employee’s working environment must be both subjectively and objectively hostile ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 14
    • Subjective Hostility • The discriminatory harassment must be subjectively offensive and unwelcome to the employee. • S/he must actually be offended by the conduct • The conduct must also be unwelcome by the employee • The employee’s participation or response in kind to banter, slurs, jokes, or exchange or distribution of sexually oriented or racially derogatory materials may undercut his/her proof of subjective hostility • Caution: Voluntary participation in sex-related conduct is not a defense simply because the complainant was not forced to participate. The sexual advances and contact will be actionable under Title VII if they were unwelcomed by the complaining employee and s/he is forced to comply with the abuse in return for the privilege of being allowed to work and make a leaving. ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 15
    • OBJECTIVE HOSTILITY • The harassing conduct must also create a working environment which is objectively hostile – i.e. the working environment must be one which a reasonable person in the employee’s position would find hostile • In the Ninth Circuit, in a sex discrimination case, the severity and pervasiveness of sexual harassment is considered from the perspective of a reasonable person of the same sex as the employee • In the Ninth Circuit, in a race discrimination case, the severity and pervasiveness of harassment is considered from the perspective of a reasonable person belonging to the same racial or ethnic group of the employee ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 16
    • • In evaluating the objective hostility of a work environment, the frequency, severity, and physical or verbal nature of the discriminatory conduct are considered as well as whether or not the conduct has unreasonably interfered with the employee’s work performance • Discriminatory harassment need not cause diagnosed psychological injury in order for an employee to establish a Title VII hostile work environment claim. It is enough “if such hostile conduct pollutes the victim’s workplace,” making it more difficult for him/her to do his/her job, to take pride in his/her work, and to desire to stay on in his/her position ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 17
    • HOSTILE WORK ENVIRONMENT BASED UPON AN EMPLOYEE’S RACE • Race discrimination occurs when an employee is treated unfavorably because s/he is of a certain race or because of personal characteristics associated with a certain race (-e.g. hair texture, skin color, or certain facial features) • Color discrimination occurs when an employee is treated unfavorably because of skin color or complexion • Race/color discrimination also includes treating someone unfavorably because s/he is married to or otherwise associated with a person of a certain race or color or because of a person’s connection with a race-based organization or group or an organization or group that is generally associated with people of a certain color ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 18
    • NATIONAL ORIGIN DISCRIMINATION • National origin discrimination occurs when an employee is treated unfavorably because s/he is from a particular country or part of the world, or because of ethnicity or accent, or because s/he appears to be of a certain ethnic background even if s/he is not • National origin discrimination also occurs when an employee is treated unfavorably because s/he is married to or otherwise associated with a person of a certain national origin or because of that other person’s ethnic organization or group ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 19
    • HOSTILE WORK ENVIRONMENT BASED UPON AN EMPLOYEE’S SEX • Sex discrimination occurs when an employee is treated unfavorably because of his/her sex • Sex discrimination includes harassing a person because of that person’s sex/gender • Sex discrimination also includes harassing a person because they are lesbian, gay, bisexual, or transgender (-e.g. harassment because of a person’s non-conformance with sexual stereotypes – gender identity discrimination) ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 20
    • SAME-SEX SEXUAL HARASSMENT • The United States Supreme Court has held that Title VII’s prohibition against employment discrimination “because of sex” includes prohibiting same-sex sexual harassment if such harassment is “because of sex.” ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 21
    • SAME-SEX SEXUAL HARASSMENT • An employee claiming same-sex workplace sexual harassment must present sufficient evidence to prove that the harassment was “because of sex.” The U.S. Supreme Court has identified the following three types of circumstances which, if proven by an employee, may serve to support an inference that the alleged same-sex harasser’s conduct toward him/her was because of the employee’s sex: • (1) When proposals to engage in sexual activity are made by the harasser and there is credible evidence that the harasser is homosexual; • (2) When the victim is treated in a sex-specific manner which suggests hostility toward people of the victim's sex; or • (3) When men and women are treated differently by the harasser ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 22
    • PREGNANCY DISCRIMINATION • As amended by the Pregnancy Discrimination Act (“PDA”), Title VII of the Civil Rights Act of 1964 provides that prohibited employment discrimination “because of sex” or “on the basis of sex” includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 23
    • EXAMPLES OF EVIDENCE ESTABLISHING HOSTILE WORK ENVIRONMENT CLAIM BASED ON SEXUAL HARASSMENT • Plaintiff employee was only one of 4-6 female lifeguards out of 40-50 who worked for the employer city. Over the course of the employee’s five-year employment, male supervisors repeatedly touched bodies of female employees without invitation, plaintiff’s supervisor put his arm around her with his hand on her buttocks, made contact with a female lifeguard in a motion of sexual simulation, supervisors made crudely demeaning references to women generally and to sexual matters, commented disparagingly on plaintiff’s shape, told a female hiree that female lifeguards had sex with their male counterparts and asked if she would do the same, commented on the bodies of female lifeguards and beachgoers, and made sexual overtures towards female lifeguards. Employer city was also found vicariously liable for failing to exercise reasonable care to end and prevent the severe and pervasive sexual harassment. ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 24
    • EXAMPLES OF EVIDENCE ESTABLISHING HOSTILE WORK ENVIRONMENT CLAIM BASED ON SEXUAL HARASSMENT • Employer hotel’s chief of engineering (male) subjected female housekeeping staff to on-going barrage of sexual harassment, including making sexually offensive remarks, commenting about their body parts, and making repeated sexual advances. Executive housekeeper (female) witnessed the sexual harassment, but simply laughed it off or joined in the crude comments. Executive housekeeper also admitted to engaging in repeated pregnancy discrimination and was alleged to have repeatedly called the pregnant housekeeping staff members “stupid women who have kids,” “dog,” “whore,” and “slut.” ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 25
    • EXAMPLES OF EVIDENCE ESTABLISHING HOSTILE WORK ENVIRONMENT CLAIM BASED ON SEXUAL HARASSMENT • Plaintiff was one of relatively few female employees working for state department of transportation’s contract compliance division. Her direct supervisor (male) routinely made demeaning comments to her and other women in the division, including that “women have no business in construction,” “women should only be in subservient positions,” he would never work for a woman, women in the department were getting paid more than they should be, and he wished he could get men to replace the women. He also referred to women as stupid and suggested plaintiff and her female co-workers had substandard abilities and intelligence because of their gender. The supervisor also continuously told sexually explicit jokes, and he openly objected to female employees continuing to work while pregnant and with small children. ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 26
    • EXAMPLES OF EVIDENCE ESTABLISHING HOSTILE WORK ENVIRONMENT CLAIM BASED ON SEXUAL HARASSMENT • Female IRS employee was subjected to escalating harassment by a male co-worker whose desk was in same vicinity. The coworker started by pestering her with unnecessary questions, hanging around her desk, and asking her out for a drink and lunch. He then wrote her some letters, which although not explicitly sexual in content, could have been interpreted as making sexual references and also demonstrated he was seriously deluded about the nature of their relationship. Although the IRS took some steps to separate the perpetrator from the plaintiff employee, it did not ensure he was permanently removed from her office, even after he wrote plaintiff another disturbing letter despite having been admonished not to contact her. ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 27
    • EXAMPLES OF EVIDENCE ESTABLISHING HOSTILE WORK ENVIRONMENT CLAIM BASED ON SAME- SEXUAL HARASSMENT • Male member of eight-man all male oil rig crew was forcibly subjected to sex-related humiliating actions by supervisor and co-worker crew members. He was physically assaulted in a sexual manner, forcibly restrained by two crew members while another placed his genitals on the plaintiff, was forcibly restrained in the shower while a crew member forced a bar of soap into his anus, and was threatened with rape. Management was unresponsive to his complaints, and he left his employment fearing that submission to such sexual aggression, humiliation, and, potentially, rape was going to be a condition of his employment. ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 28
    • EXAMPLES OF EVIDENCE ESTABLISHING HOSTILE WORK ENVIRONMENT CLAIM BASED ON SAME- SEXUAL/GENDER IDENTITY HARASSMENT • Male host at employer restaurant was subjected to a relentless campaign of insults, name-calling, and vulgarities by male co-workers and supervisors because he was effeminate and did not meet their views of the male stereotype. He was habitually called sexually derogatory names (including “faggot” and “fucking female whore”), referred to with the female gender (including as “she” and “her”), and taunted for “behaving like a women” (including being mocked for walking and carrying his tray “like a woman”). The harassment occurred at least once a week and often several times a day during the plaintiff’s four-year employment. ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 29
    • EXAMPLES OF EVIDENCE ESTABLISHING HOSTILE WORK ENVIRONMENT CLAIM BASED ON RACIAL HARASSMENT • Twenty-three year African-American telecommunications company employee who worked as a lineman and in supervisory capacity was subjected to an extensive barrage of racial harassment by supervisors and co-workers. The harassment included forcing him to work under dangerous conditions without proper equipment or sufficient crew members to complete the job, subjecting him to obscene and demeaning racially derogatory language, expressing a wish to fire him, and commenting when he was wearing a gold chain that “only drug dealers can afford nice gold chains.” Plaintiff was also refused overtime pay provided to Caucasian employees and refused access to a properly maintained vehicle while Caucasian employees were provided with such. ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 30
    • Plaintiff was also subjected to the very worst of racial slurs and racially derogatory and demeaning comments by supervisors and co-workers. In addition to all of this, the plaintiff had also been subjected to threatening racist graffiti on the walls of the men’s restroom and on switch boxes in the blockhouse and garage areas where he worked. Plaintiff’s Caucasian co- worker was also subjected to harassment because of his friendship with plaintiff. • Significantly, the Ninth Circuit Court of Appeals explained with respect to racial harassment of this nature: • “Racially motivated comments or actions may appear innocent or only mildly offensive to one who is not a member of the targeted group, but in reality be intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group.” Further, the use of certain racial slurs in of itself is highly offensive and demeaning “evoking a history of racial violence, brutality, and subordination” as well as racial hatred and bigotry. In other words, the use of certain racial slurs is usually always loaded and more than a mere offensive utterance. ESTABLISHING A HOSTILE WORK ENVIRONMENT CLAIM 31
    • • Title VII provides both non-monetary and monetary remedies for employees who prove they have been victims of employment discrimination • The U.S. Supreme Court has explained Title VII seeks to make persons whole on account of unlawful employment discrimination - the goal is to put the victim in the same, or nearly the same, position that s/he would have been if the discrimination had not occurred • Title VII does not require the employee to suffer economic harm such as termination from employment, denial of a wage or salary increase or bonus TITLE VII’S REMEDIES FOR BEING SUBJECTED TO A HOSTILE WORK ENVIRONMENT 32
    • Non-Monetary Remedies Title VII’s Non-Monetary Remedies Include: • Reinstatement • Placement in a job advancement • Ordering the employer to cease a discriminatory practice • Ordering the employer to correct a hostile work environment and take steps to prevent discrimination in the future • Ordering the employer to improve/implement anti-discrimination polices, complaint procedures, anti-harassment training, and anti-discrimination enforcement TITLE VII’S REMEDIES FOR BEING SUBJECTED TO A HOSTILE WORK ENVIRONMENT 33
    • Monetary Remedies Title VII’s Monetary Remedies Include: • Back pay (for placement in an advanced position or before reinstatement) • Interest on back pay • Retroactive benefits • Front pay (may be awarded in lieu of reinstatement) TITLE VII’S REMEDIES FOR BEING SUBJECTED TO A HOSTILE WORK ENVIRONMENT 34
    • Compensatory Damages • Other compensatory monetary damages available under Title VII include: • Out-of-pocket expenses caused by the discrimination (-e.g. job search costs and medical expenses) • Future pecuniary loss (not front pay, but other future diminishment in earning capacity due to e.g. reputational harm caused by the discrimination, etc.) • Emotional harm, pain, suffering • Mental anguish • Loss of enjoyment of life • Inconvenience • Other non-pecuniary loss TITLE VII’S REMEDIES FOR BEING SUBJECTED TO A HOSTILE WORK ENVIRONMENT 35
    • Punitive Damages • Punitive damages are awarded to punish for engaging in egregious intentional conduct or reckless conduct and to deter such conduct in the future • The employee may be entitled to punitive damages if s/he proves the employer has committed an especially malicious or reckless act of discrimination TITLE VII’S REMEDIES FOR BEING SUBJECTED TO A HOSTILE WORK ENVIRONMENT 36
    • Limits On Compensatory & Punitive Damages Limits capping the total amount of compensatory and/or punitive damages depend upon the employer’s size: • Employers with 15-100 employees: $50,000 limit • Employers with 101-200 employees: $100,000 limit • Employers with 201-500 employees: $200,000 limit • Employers with more than 500 employees: $300,000 limit TITLE VII’S REMEDIES FOR BEING SUBJECTED TO A HOSTILE WORK ENVIRONMENT 37
    • • Title VII’s remedies to which an employee may be entitled to compensate him/her for being subjected to a hostile work environment when s/he is still employed including . . . • Title VII remedies to which an employee may be entitled if his/her employment is terminated including . . . • Termination of employment based upon discrimination • Retaliatory termination of employment • “Constructive discharge” (Requires the employee to prove his/her working conditions deteriorated as a result of the discriminatory hostile work environment to the point they became “sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer”) TITLE VII’S REMEDIES FOR BEING SUBJECTED TO A HOSTILE WORK ENVIRONMENT 38
    • • Title VII prohibits an employer from retaliating against an employee for complaining about workplace discrimination, filing a charge of discrimination, or participating in an employment discrimination investigation or proceeding (-e.g. an internal investigation, testifying as a witness in a deposition or trial, etc.) TITLE VII PROHIBITS RETALIATING AGAINST AN EMPLOYEE FOR COMPLAINING ABOUT WORKPLACE DISCRIMINATION 39
    • • In order to prove his/her employer unlawfully retaliated against him/her for seeking redress of workplace harassment prohibited by Title VII, an employee must prove: • (1) The employee complained about workplace harassment violating Title VII (or what s/he reasonably believes is discriminatory harassment); • (2) An “adverse employment action” was thereafter taken against the employee; and • (3) There is a causal link between those two events Establishing A Retaliation Claim 40
    • Adverse Employment Action • In order to prove s/he was subjected to an “adverse employment action,” the employee must show that a reasonable employee would have found the challenged action “materially adverse” – i.e. the action could well dissuade a reasonable employee from making or supporting a charge of discrimination. • If the employee establishes all three elements of his/her retaliation claim, the burden shifts to the employer to produce evidence showing legitimate, non-retaliatory reasons for any adverse actions taken against the employee, and, if the employer does so, the employee has the ultimate burden to prove that the employer’s proffered reasons are a pretext for retaliation. Establishing A Retaliation Claim 41
    • DISCRIMINATORY HARASSMENT BY A SUPERVISOR • An employer is vicariously liable to an employee who has been subjected to a hostile work environment violating Title VII created by a supervisor • The United States Supreme Court has recently limited the definition of “supervisor” for purposes of vicarious liability under Title VII to someone “empowered by the employer to take tangible employment actions against the victim” of the discriminatory harassment • “Tangible employment action” means an employment action effecting “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” EMPLOYER’S LIABILITY FOR HOSTILE WORK ENVIRONMENT 42
    • DISCRIMINATORY HARASSMENT BY A CO-WORKER • If an alleged perpetrator of discriminatory harassment is the complaining employee’s coworker, the employer is only liable for such conduct under Title VII if the employee proves the employer knew or should have known of the harassment but did not take adequate steps to address it • In order for knowledge to be imputed to an employer, the employee must prove that management knew or should have known of the harassment • An employee is a member of management for purposes of imputing knowledge if s/he is either a “supervisor possessing substantial authority and discretion to make decisions concerning the terms of the harasser’s or harassee’s employment, such as authority to counsel, investigate, suspend, or fire the accused harasser, or to change the conditions of the harassee’s employment” or although the supervisor lacks such authority, s/he nonetheless has “ an official or strong de facto duty to act as a conduit to management for complaints about work conditions” EMPLOYER’S LIABILITY FOR HOSTILE WORK ENVIRONMENT 43
    • EMPLOYER’S AFFIRMATIVE DEFENSE TO HOSTILE WORK ENVIRONMENT CREATED BY A SUPERVISOR • No affirmative defense is available when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment • When no tangible employment action is taken, the employer may raise an affirmative defense to liability or damages by proving the following: • (1) The employer exercised reasonable care to prevent and correct promptly any discriminatory harassing behavior, and • (2)The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise EMPLOYER’S LIABILITY FOR HOSTILE WORK ENVIRONMENT 44
    • EMPLOYER’S AFFIRMATIVE DEFENSE TO HOSTILE WORK ENVIRONMENT CREATED BY A SUPERVISOR • The employer must show it had acted to prevent discriminatory harassment generally: • Proof that the employer had promulgated an anti harassment policy with a complaint/grievance procedure is usually a significant part of proving the employer exercised reasonable care to prevent discriminatory harassment • Proof of mandatory regular anti-harassment training is also helpful • The employer must also show it took prompt, reasonable care to correct harassment in the specific instance, which usually includes undertaking a thorough investigation and punishing the perpetrating supervisor sufficiently to deter both him/her and other employees from engaging in similar discrimination EMPLOYER’S LIABILITY FOR HOSTILE WORK ENVIRONMENT 45
    • EMPLOYER’S AFFIRMATIVE DEFENSE TO HOSTILE WORK ENVIRONMENT CREATED BY A SUPERVISOR • Demonstrating the complaining employee failed to use a complaint/grievance procedure provided by the employer, depending upon the circumstances, may or may not be sufficient to prove that the employee unreasonably failed to take advantage of any preventive or corrective opportunities EMPLOYER’S LIABILITY FOR HOSTILE WORK ENVIRONMENT 46
    • EMPLOYER’S AFFIRMATIVE DEFENSE TO HOSTILE WORK ENVIRONMENT CREATED BY A CO-WORKER • An employer who knows or should know of discriminatory harassment by the complaining employee’s co-worker may nonetheless avoid liability for such harassment by undertaking remedial measures “reasonably calculated to end the harassment” • The reasonableness of the employer’s remedy will depend upon: • (1) Whether or not the employer investigated the harassment and intervened promptly; • (2) The remedy’s ability to stop harassment by the co-worker who engaged in the harassment – i.e. usually, the measure must include some form of disciplinary action “proportionate to the seriousness of the offense”; and • (3) The remedy persuades potential harassers to refrain from such unlawful conduct EMPLOYER’S LIABILITY FOR HOSTILE WORK ENVIRONMENT 47
    • • In Idaho, a Title VII hostile work environment claim must be filed with the Idaho Human Rights Commission within 300 days from the last incident of discriminatory harassment • A retaliation claim must be filed with the Idaho Human Right Commission within 300 days from the alleged retaliatory conduct • An employee’s failure to file a charge of discrimination within the statute of limitations is an affirmative defense for the employer • Federal employees (and possibly state employees) are under a different grievance procedure and timing STATUTE OF LIMITATIONS 48
    • • The Idaho Human Rights Act is Idaho’s anti employment discrimination legislation corresponding to Title VII • The Human Rights Act also prohibits discriminatory harassment based upon an employee’s race or sex CORRESPONDING STATE ANTI- DISCRIMINATION LAWS 49
    • • Implement strong written anti-harassment and anti-retaliation policies which are distributed to all current and new employees • Include in the policy a clearly stated grievance procedure whereby employees are given contact information for reporting discrimination and harassment, including someone to contact in the event the alleged harasser is the employee’s supervisor or the employee is otherwise uncomfortable contacting his/her supervisor regarding the harassment • Include in the policy a clear statement that anyone found to have perpetrated harassment will be subject to discipline up to and including termination of his/her employment • Ensure management-level and other supervisory personnel know to report any complaint or allegations which is characterized as, or could possibly be construed as, discriminatory harassment • Take all harassment allegations seriously, thoroughly investigate, document, take appropriate measures to prevent harassing conduct, and ensure the complaining employee knows the employer investigated and of the resulting finding TIPS FOR AVOIDING HOSTILE WORK ENVIRONMENT CLAIMS 50
    • • Implement and enforce policies and measures which prohibit the type of conduct which may be perceived as discriminatory harassment or provide a basis for a hostile work environment claim (-e.g. prohibit the use of workplace e-mail to distribute material with sexual or racial content; prohibit workplace discussion or distribution of jokes, photographs, objects, or other items with offensive sexual or racial references; enforce a no “horse play” policy; enforce a “keep your cool” policy whereby employees are prohibited from engaging in verbal outbursts or physical aggression during a dispute with a co-worker or supervisor) • Ensure supervisors/employees with management functions know they must report any allegation of sexual or racial harassment or allegation of conduct which is ostensibly sexual or racial harassment even if the supervisor believes the complaining employee is lying, exaggerating, or misperceiving, etc. • Investigate each allegation of sexual or racial harassment or conduct which is ostensibly sexual or racial harassment – don’t dismiss the allegation outright based upon suspicions, doubts, or assumptions which are unsupported by an investigation TIPS FOR AVOIDING HOSTILE WORK ENVIRONMENT CLAIMS 51
    •  Sarah H. Arnett direct: (208) 562.4909 email: sarnett@parsonsbehle.com Thank You 52