Employment discrimination can take the form of workplace harassment. To be actionable in federal court, the level of harassment has to be severe or pervasive enough to constitute a hostile work environment. For instance, a workplace that is saturated with sexual jokes, slurs, or innuendo could constitute a sexually hostile work environment. A workplace that is saturated with racial jokes, slurs, or innuendo could constitute a racially hostile work environment.
A hostile work environment can be actionable if an employer is aware of the harassment but fails to take prompt and effective corrective action. The employee generally has a duty to complain to the employer about the harassment.
In order to establish a prima facie hostile work environment claim, a plaintiff must demonstrate that the alleged conduct:
1) was unwelcome;
2) resulted because of [race, sex, national origin, religion, etc.];
3) was “sufficiently severe or pervasive” to alter the conditions of [his or her] employment; and,
4) was imputable to [his or her] employer.
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 338 (4th Cir. 2003).
First, a plaintiff can demonstrate that the harassment is unwelcome by complaining about it.
Second, if a female employee is the victim of sexual jokes, slurs, or innuendo from a male co-worker or supervisor, the harassment is assumed to be because of her sex. The same can be said about harassment that targets an employee’s race, national origin, or religion.
Third, the offensive conduct must be sufficiently severe or pervasive. Generally, the offensive conduct must be more than incidental. For example, a few instances of racial or sexual name-calling may not be actionable. However, a workplace where racial or sexual name-calling is a daily occurrence could be actionable. Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001); Harris v. Forklift Sys., 510 U.S. 17, 22 (1993) (”A discriminatorily abusive work environment…can and often will detract from employees’ job performance…”)
Fourth, an employer can generally be found liable for a hostile work environment when the employer: 1) has knowledge of the harassment, and, 2) fails to take prompt and effective corrective action. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S.775 (1998).
If you are a victim of a hostile work environment, seek the advice of an experienced attorney as soon as possible.
Bryan A. Chapman, Esquire