Not every trivial dispute constitutes actionable workplace harassment

May 22, 2018

Workplace harassment is inappropriate, but not always legally actionable.

The U.S. Supreme Court established the standard for harassment that rises to the level of a Title VII violation.

The court identified actionable harassment to include that conduct which is “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.”

According to the regulations established by the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal discrimination laws, the inquiry on actionable harassment includes whether the unwelcome conduct “unreasonably interferes with an individual’s work performance” or creates an “intimidating, hostile or offensive working environment.”

Not all misconduct at work constitutes behavior that is actionable under Title VII.

In its policy guidance on current issues of sexual harassment, the EEOC states, sexual “flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.”

Citing federal case law, the EEOC also explains in its policy guidance that the “harasser’s conduct” should be evaluated by determining the viewpoint of a reasonable person, adding that “Title VII does not serve ‘as a vehicle for vindicating the petty slights suffered by the hypersensitive.’”

The EEOC states that the reasonable person analysis must be made in context, evaluating whether the “reasonable person’s reaction to a similar environment under a similar or like circumstances.”

The problem is that these situations are evaluated on a case by case basis.

The EEOC also cautions, however, that the victim’s perspective should also be considered. It notes, “a workplace in which sexual slurs, displays of ‘girlie’ pictures, and other offensive conduct abound can constitute a hostile work environment even if many people deem it to be harmless or insignificant.”

With respect to single incidents, the EEOC’s guidance states, “Unless the conduct is quite severe, a single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive environment.”

The EEOC notes that, in general, an actionable hostile work environment claim requires a showing of a pattern of offensive and abusive conduct.

However, this guidance appears inconsistent with a 2017 Third Circuit Court of Appeals case wherein the court held, “one such instance can suffice to state a claim” when a white supervisor used a single racial slur to two black employees. This isolated incident was enough for the court to conclude that the jury should decide whether the employees suffered a hostile work environment.

The EEOC also explains that a single unwelcome physical touching could be enough to constitute a hostile work environment.

The EEOC’s policy guidance states, “If an employee’s supervisor sexually touches [an] employee, the Commission normally would find a violation.”

Thus, it is more difficult to win a harassment lawsuit than might be generally understood. The standards are relatively rigorous and contextual, although courts appear to be finding more behaviors as potentially actionable, as noted by the Third Circuit case.

Due to the uncertainty of harassment case law, harassment prevention in the workplace needs to be about culture, not lawsuits.

Employers cannot wait until a case is actionable before it prevents and eliminates inappropriate workplace behavior.

Workplace policies should be specific on behaviors that are unacceptable at work, to include workplace bullying, verbal abuse of any kind, racial slurs, sexual comments and behaviors, horseplay, pranks and practical jokes.

Setting expectations and holding people accountable are the keys to eradicating inappropriate workplace behaviors that are causing employees to feel uncomfortable and unsafe, regardless of whether they rise to the level of an actionable federal discrimination claim.