Harassment Elements for the Cause of Action
To establish harassment, generally these four criteria must be proven by the victim:
1) she or he belongs to a statutorily protected class, i.e. race, color, national origin, etc
2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving your protected class
3) that the harassment was based on a statutorily protected class
4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with her or his work environment and/or creating an intimidating, hostile or offensive environment.
The first element is simply the victim’s status as male or female in the case of sexual harassment or the victim’s status as black, white, red, or yellow in the case of racial or color harassment or the victim’s age in the case of age harassment, or the victim’s being Christian, Jewish, Muslim or Catholic in the case of religious harassment, etc.
The second element involves verbal or physical conduct that is not wanted or welcomed. Unwelcomed conduct can be shown where the victim did not solicit or invite the conduct and regarded the conduct as undesirable. While a victim’s active participation in unwelcomed verbal or physical conduct may make it more difficult to show that the conduct was unwelcomed or subjectively hostile (discussed below), it does not automatically waive the victim’s right to a work environment free from harassment or hostility.
Regarding the third element, the conduct must be because of a statutorily protected status. The key is whether the harassing conduct is directed towards the victim because of his or her race, color, sex, national origin, religion, etc.
Lastly, the fourth element can be shown where the harassment affects a term of condition of employment and/or creates an intimidating, hostile environment. A term or condition of employment refers to the employer’s decisions with respect to employment such as hiring, firing, pay, demotion, promotion as well as the employer’s approving break or leave time or approving work stations and the like. This last element can be shown if the harassment affected those terms or conditions of employment. For example, a supervisor harasser in a sexual harassment context refuses to promote the victim unless the victim submits to the supervisor’s sexual demands. Such harassment affects the terms and conditions of the victim’s employment.
With respect to hostile environment, the verbal or physical conduct must be severe or pervasive such as to create a hostile work environment. The Supreme Court has described a hostile work environment as one where the “workplace is permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the victim’s employment.” Harris v. Forklift Sys Inc., 570 U.S. 17, __ (1993). Exactly when that permeation is reached can be difficult to determine and thus difficult to predict whether there has been discriminatory harassment. The courts analyze the severe and pervasive factors on a sliding scale inversely to each other. While some conduct can be so severe that it constitutes discriminatory harassment even if it occurs only once, other conduct that is not severe will not be considered harassment unless it is so pervasive that it alters the victim’s employment. Thus the more severe the harassment, the less pervasive it has to be. The less severe the harassment, the more pervasive it must be. The victim must show more than a few isolated incidents (unless severe) and cannot rely solely on casual comments or trivial events and sporadic conversation. There is no magic number of harassing incidents above which the victim has a cause of action or below which the victim does not have a cause of action. Richardson v. N.Y.S. Dep’t of Correctional Servs., 180 F.3d 426 (1999). Each situation must be analyzed under the totality of the circumstances.
In addition, the verbal or physical conduct must create a hostile workplace under a subjective and objective standard. A subjective standard means that the victim himself or herself found the workplace hostile. An objective standard means that “a reasonable person” would find the workplace hostile. Some courts have instead interpreted this standard as a reasonable person in the victim’s position would find the workplace hostile.
The description above on the elements of a discriminatory harassment cause of action is only a general description. The facts, circumstances, and context of your matter must be assessed individually. Call now to discuss your particular matter. 1-800-791-0206