Old slurs don’t make hostile environment today

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in Discrimination and Harassment,Human Resources

Some employees never forget an indignity. Years later, they may sue over something unrelated to the original wrong and try to bring the old offense into the case.

That sometimes works if their claim alleges a hostile work environment. But if the hostility stopped years ago, chances are the court won’t consider the old claim.

Recent case: Felice Orlando sued his employer, a state agency, when he was denied a promotion, allegedly on account of his race. He also added a hostile work environment claim, arguing that a co-worker called him racially charged names back in 1996.

The employer first pointed out that Orlando had earned three promotions in the past few years and only lost out on the last one because he failed the promotion test. Then it explained that even if the alleged co-worker’s slur did happen, that employee had long since retired and nothing else had happened since then that was at all racially charged.

The court tossed out Orlando’s case. It reasoned that failing the promotion test caused Orlando to miss out on the promotion. Without evidence the test was discriminatory, he had no claim.

Plus, it said isolated, racially charged comments that stopped years ago can’t be used to prove a hostile work environment if there aren’t later incidents. Then and only then can an employee bring in incidents that happened more than 300 days before filing an EEOC complaint. If the behavior stopped—for whatever reason—it’s not part of a continuing violation. (Orlando v. Department of Transportation, No. 10-5142, 2nd Cir., 2012)

Final note: Redemption can follow even egregious hostility. Just act quickly to fix the problem by disciplining the co-workers responsible for the misbehavior and making sure it doesn’t happen again.

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