EEOC: Same-Sex and Race-Based Harassment is Not OK.
The “n word” has surfaced in yet another lawsuit based on racial harassment.
Also present is a type of “boys club” culture consisting of sex-based horseplay and other misconduct.
Last week, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against one company for both race and sex-based harassment, claiming that employees’ conduct created a “hostile work environment.”
According to the EEOC’s press release, which you can read here, employees at one company frequently used the “N-word,” and one employee in particular repeatedly called a black employee the “N-word.”
As if that is not egregious enough, the EEOC also charged that male employees with using sexually derogatory language and repeated inappropriately touching of other male employees’ legs, buttocks, and genitals. When at least one employee complained, nothing was done.
Not funny, not cute. Not even a little.
These are major, serious allegations. And it does not matter, as we’ve said before, that the allegations seem to be based on same-sex harassment. The U.S. Supreme Court clarified twenty years ago in Oncale v. Sundowner Offshore Services that Title VII of the Civil Rights Act of 1964 (Title VII), the federal law prohibiting sex discrimination and sexual harassment, prohibits same-sex harassment.
What Exactly is a Hostile Work Environment?
First, to constitute a hostile work environment, comments and/or conduct must be based on or because of a protected characteristic, such as, in this case, gender and race. Second, race or sex-based comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Finally, the employee herself or himself must consider the behavior to be offensive and abusive.
Regarding sexual harassment, offensive conduct may include, but is not limited to, offensive sex-based jokes, slurs, epithets or name calling (based on one’s gender, body parts, romantic life, etc.); physical assaults or threats of assaults; intimidation, ridicule or mockery, insults or put-downs; offensive objects or pictures, or interference with work performance. Same-sex offensive conduct certainly qualifies.
Offensive conduct may also include offensive race-based jokes, slurs, comments, epithets or name calling (like the “n-word”); physical assaults or threats of assault; intimidation, ridicule or mockery, insults or put-downs, display of offensive objects or pictures, and interference with work performance.
Oh, and a “harasser” does not have to be an employee or manager—(s)he can be a customer or vendor—and the victim does not have to be the person harassed.
So, do we have such an environment here?
Well, if the allegations are true, case law would support it. My partner Rich Cohen told you here about a 2013 decision from a federal appeals court in Washington, DC, which held that a single use of the “N-word” was enough to make out a hostile work environment because it is so “deeply offensive.”
That court held:
As other courts have observed, ‘perhaps no single act can more quickly alter the conditions of employment’ than ‘the use of an unambiguously racial epithet such as ‘n[***]r’ by a supervisor. … This single incident might well have been sufficient to establish a hostile work environment.
There’s also this Fourth Circuit case where a restaurant manager called a cocktail waitress a “porch monkey,” and U.S. Court of Appeals ruled that “an isolated incident of harassment,” if extremely serious like this one, is sufficiently severe to create a hostile work environment.
How Does An Organizational Culture Fit in?
The way the press release reads, the EEOC alleges that the workplace was rife with these shenanigans and conduct. Seems like the workplace culture was one of harassment as opposed to respect! As I noted here, organizations that tolerate offensive behavior “typically have far greater problems with sexual harassment.”
In fact, one scholar testifying for the EEOC stated here that science has shown that when the climate does not tolerate such behavior, it can inhibit harassment, “even by those with a propensity toward such conduct.”
My partner Rich Cohen wrote about the scientifically-proven significance of organizational climate here, where he noted: a major study from the National Academies of Sciences, Engineering said that “the strongest, most potent predictor of sexual harassment is essentially the culture of the company ― what the researchers call ‘organizational climate.’” More science! There must be something to this “organizational culture” or “climate” idea.
While this case seems like an egregious example of both severe and pervasive behavior, it will be interesting to see how the case proceeds—and if it proceeds (settlement, anyone?). However, the facts here elucidate the relevance of an organization’s culture, which we’ve discussed in previous blogs.
Employers: create a culture of respect and tolerance rather than a culture of harassment and discrimination.