Harassment, Discrimination, or a Hostile Work Environment – Are your employees – or you – affected by this?

A truism in the realm of human resources and employment law is that perception shapes everything. The employer sincerely believes employees get all the breaks and can get away with anything. Just as sincerely, employees believe employers have all of the power, that there’s nothing that they can do about it, and it’s just not fair!

So it’s not surprising that employees misconstrue the terms of unlawful harassment, discrimination, and hostile work environment to mean generally unfair treatment or being subject to unfair criticism.

However, the key is whether the employee is being treated differently or targeted because of his or her protected class. Federal, state, and local laws prohibit discrimination – different treatment in hiring, compensation, general terms and conditions of employment, discipline, and termination – on the basis of race, color, sex, religion, age, national origin, pregnancy, genetic information, veteran’s status, disability, ancestry, guide/service animal use, sexual orientation and gender identity, marital status, and possession of a GED.

Today, there is no federal or Pennsylvania law banning discrimination on the basis of sexual orientation and gender identity, but there are several local ordinances plus last year’s Executive Order with respect to federal contractors and subcontractors that do prohibit sexual-orientation and gender-identity discrimination.

In addition, the Equal Employment Opportunity Commission’s position is that sexual orientation and gender identity bias should be construed as unlawful under the broad category of sex discrimination.

Unlawful harassment is a form of unlawful employment discrimination and is unwelcome conduct based on the protected classes listed above. Even though sexual harassment is the type of prohibited conduct that first comes to mind, harassment can be on the basis of any legally protected classification such as race, color, religion, national origin, or age.

Unlawful harassment can include jokes, slurs, name calling, physical assaults, threats, intimidation, ridicule or mockery, and offensive objects or pictures but must be related to protected class in order to be unlawful.

While petty slights, annoyances, and isolated incidents don’t rise to the level of illegality, harassment becomes unlawful when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

This is where the term hostile work environment comes into play. It does not mean a simply unpleasant workplace; rather, the offensive communications or actions on the basis of protected class must create a work environment that would be intimidating, hostile, or offensive to a reasonable person. Deciding whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.

The “reasonable person” standard can be tricky. There are plenty of court cases construing what constitutes unlawful harassment that would surprise readers either way – that the conduct is sufficient to claim or that it is insufficient.

What is inoffensive to 99 percent of the workforce could still be offensive to a reasonable person and actionable by one employee. On the other hand, an employee could be actually and subjectively offended by workplace conduct, but if a reasonable person would not be, it may not be a viable claim for discriminatory harassment.

Another thing to keep in mind is that however reasonable actions or comments seem in the context of the workplace, they won’t be so easy to explain in a courtroom.

Different standards apply as to whether a peer or a supervisor is the harasser. An employer is liable for the unlawful actions of a supervisor that results in negative employment action, such as demotion and termination, but not necessarily an unfavorable performance review.

An employer can defend against the claim of hostile work environment by demonstrating that he or she took reasonable attempts to prevent and promptly correct the objectionable behavior and/or that the employee unreasonably failed to take advantage of preventive or corrective opportunities.

In that regard, it is always good for an employer to have and communicate a policy of how discrimination and harassment are to be reported and to provide alternatives so that an employee does not have to report to the person responsible for the discrimination or harassment.

Another important consideration is that an employer can be liable for the acts of third parties such as vendors, independent contractors, or customers, if it knew or should have known about the conduct and failed to take prompt and appropriate corrective action.

Employers must be aware that they may be subject to a retaliation claim if they have received a complaint – even an informal complaint – of discrimination, and the reporting employee is treated differently or adversely because of the reporting of offensive behavior.

This does not have to be the employee’s own treatment; it can be reporting discrimination or harassment against another employee. It can also be involvement not just as a claimant but as a witness in any proceeding or investigation of unlawful discrimination.

The type of employer action on which a retaliation claim can be based does not include petty slights and annoyances, stray negative comments in an otherwise positive or neutral evaluation, snubbing a colleague, or negative comments that are justified by poor work performance or history. However, a retaliation claim can be actionable even when the underlying complaint lacks merit.

You can count on customers, vendors, and workers taking offense easily in these days of political correctness, where Supreme Court justices get tripped up by sexist and racist emails and Mummers are castigated for anti-LGBT bigotry. Be sure that you and your employees are educated, emphasize compliance with the law, and everyone will benefit. BW

Christina Hausner, attorney and partner at Russell, Krafft & Gruber, LLP in Lancaster, Pa., since 1982, applies her experience and specialization in employment law to several areas of practice including municipal law, business law, and civil litigation. www.rkglaw.com