Hostile Environment Racial Harassment
A hostile work environment occurs when a person is subjected to unwelcome verbal or physical conduct of a racial nature to such an extent that it alters the conditions of the person's employment and creates an abusive working environment. In a hostile work environment, the harasser may be a woman or man of any race or national origin. He or she can be the victim's co-worker or supervisor.
Most laws also require employers to protect their employees from harassment by vendors, independent contractors, customers and others. Where an employer becomes aware of a hostile work environment and fails to take remedial action, that employer may be held liable whether or not the harasser is an employee.
Harassment that constitutes a hostile environment is any conduct based or thing that becomes sufficiently severe that it creates fear, intimidates, ostracizes, psychologically or physically threatens, embarrasses, ridicules, or in some other way unreasonably over burdens or precludes an employee from reasonably performing his/her work duties. Conduct that may constitute racial harassment includes the following unwelcome conduct:
- Racially offensive e-mails
- Racially offensive flyers
- Racial innuendos
- Racial cartoons
- Threats based on the victimâ€™s race
- Racial insults
- Obscene jokes
- Demeaning names
- Cat calls
- Work sabotage to intimidate due to race
- Offensive and inappropriate language
- Other conduct of a racially degrading nature
- Racial symbols such as nooses, burning crosses and such
In evaluating hostile work environment for racial harassment, courts often look at the frequency, severity, and nature of the harassment as well as the power relationship between the harasser and the victim to judge whether the conduct is sufficiently severe to alter the victims work environment. Only the hostile environment harassment that meets this threshold that can support a lawsuit. As a result, isolated incidents of a trivial nature typically are insufficient to support a lawsuit.
Racial harassment, over time, can negatively affect the victimized individual. Some common side effects of racial harassment include:
- Crying spells
- Decreased work performance
- Increased absenteeism
- Overall depressive mood
- Excessive eating and/or drinking
- Weight gain, weight loss, loss of appetite
- Increased blood pressure
- Mood swings
- Strain on family relationships
- Loss of sexual desire
- Loss of the ordinary pleasures of life
- Loss of trust in different environments
- Loss of trust in people
- Relocating to another city or state
- Loss of references or recommendations
- Panic attacks and nightmares
These symptoms are generally evaluated in determining mental anguish and emotional distress damages. The number, severity, duration of each of the symptoms experienced generally form the basis for an award of these damages.
Many victims of racial harassment often suffer other forms of humiliating and demeaning treatment of a non-racial nature. Sometimes, this results from effort of the alleged harasser and his/her friends to further demean the victim or as punishment for resisting the harassment. In some instances, the victimâ€™s work tools are removed, co-workers stop speaking to the victim, the victimâ€™s work supplies are damages, their cars vandalized in the parking lot and they may also be threatened with physical harm by the harasser and his/her friends.
In other instances, the victim is assigned to do menial work or work in an isolated, wet, or overly cold office. Other harassers may require the victim to lift objects that are heavier than average, move to a smaller office, or account for their whereabouts in more detail that is required of other employees.
When such conduct becomes extreme, outrageous and goes beyond the bounds of decency, the harassment victim may also bring a case of intentional infliction of emotional distress either as part of the racial harassment case or in a different case. Some states permit a racial harassment victim to bring a case of intentional infliction of emotional distress claim based on the same allegations that are relied on for the racial harassment claims; others do not. It is thus important that an experienced employment attorney be consulted in evaluating this option.
Intentional infliction of emotional distress claims have a different measure of damages from racial harassment cases. First, the damages allowable are broadened to include recovery for non-racial conduct of a demeaning nature. Furthermore, the cap on damages in some civil rights statutes do not apply in these case which may result in possible payment of larger damages to the victim. Additionally, some civil rights statutes only permit lawsuits against employers and not individuals. With intentional infliction of emotional distress. However, the harasser can be sued individually. Some laws also permit these suits against the employer where the employer condoned, participated in, or encouraged the conduct complained of. Punitive damages are also sometimes allowed in cases of intentional infliction of emotional distress.