The victim of racial harassment must show the elements of the harassment cause of action including that the conduct was not welcomed and that it was severe and pervasive. Sometimes employers will challenge that the conduct was not welcome because the victim willingly participated in the “playful banter.” In those circumstances, the facts of the particular incidents are crucial and must be analyzed carefully.
A hostile environment includes various types of conduct such as offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and/or interference with work performance. Like any other type of harassment claim, all the circumstances must be considered. The relevant factors include the frequency of the discriminatory conduct; whether the conduct was physically threatening or humiliating; whether it unreasonably interfered with the employee’s work performance; and the context in which the harassment occurred as well as other relevant factors.
Severe conduct can sufficiently be considered illegal harassment upon only one occurrence. Those instances can includes an actual or depicted noose, a burning cross, a favorable reference to the Klu Klux Klan, a racial comparison to an animal or any other manifestation, or threatened racially motivated physical assault and the like. Racial comments that are not sufficiently severe may become actionable when repeated. Again, a detailed analysis must occur.