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When an employer causes or allows conditions at work to result in discriminatory intimidation, ridicule and/or insult sufficiently widespread to pervade the job condition, the employer will be guilty of harassment. Three requirements must be shown:

  1. an oppressive atmosphere;
  2. a causal link between the conduct and a protected class;
  3. the conduct and motivation may be attributed to a defined employer;

The definition of “employer” includes 3 categories:

  1. managers
  2. supervisors
  3. co-workers

ACTIONABLE EVENTS

Promotion, dismissal, pay inequality because of race, ethnic origin, religion, gender, age or disability may all qualify as actionable acts. For example, an employee denied a tangible benefit following a request for a relationship with a manager, supervisor or co-worker may be a victim of discrimination.

HOSTILE WORK ENVIRONMENT

For a case to be actionable, the environment must be both objectively and subjectively offensive to a reasonable person. This means that an employer allowing working conditions to exist that make an employee feel uncomfortable or threatened or prejudiced because of demeaning remarks by managers, supervisors or coworkers has permitted a hostile work environment that may be actionable.

Isolated incidents will generally not suffice; the incident must be part of a continuing condition, often repeated. The issue is whether a reasonable person in the employee’s position would find the conduct unwelcome, hostile, and abusive. Indicia include the frequency of these incidents, their severity and whether they interfere with the employee’s work. An example: where female employees are referred to in a disparaging context, grabbed and/or threatened if they object, then a hostile environment exists. The victim must also prove that the conduct was personally offensive to the victim and unwelcome.

Males can also be the victims of discrimination.

SENIOR OFFICERS

If the officer is sufficiently senior to control policies of the employer, the employer is liable even where the company has a policy prohibiting it. A mid level supervisor may also result in employer liability if the mid-level supervisor has the power to promote, fire or discipline an employee or recommend such action. A mid-level supervisor may be considered the “employer” if he/she directs the regular work of the employee.

There are defenses. For example, an employer may rebut a hostile environment by establishing reasonable care to prevent and correct promptly any sexually harassing behavior. This is a question of fact.

Co-workers harassment may make the employer liable if the employer fails to take prompt and effective measures to remedy harassing behavior, and such conduct rises to a severe level.

If you believe that you may be the victim of unlawful discrimination or harassment, please contact us.

Our assistance is only a phone call, or e-mail communication away!

 

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