In a perfect employment world, everyone would treat everyone else with respect. No one would use racist, sexist or other offensive language. But this isn’t a perfect world. Fortunately, courts understand this reality and won’t punish a reasonable employer when it comes to racial, sexual or other harassment.
Sure, judges expect employers to keep the work environment relatively free from harassment, at least when slurs and other bad behavior come from co-workers and supervisors.
But a different, more lenient standard applies when the source is outside the company’s direct control.
Recent case: Andrew, who is black, worked as a security guard at Shands Jacksonville Medical Center in Florida. He was fired over complaints that he was argumentative with nurses and that his demeanor caused patients to become agitated.
He sued the hospital and three managers, alleging that he had been forced to work in a racially hostile work environment. Acting as his own lawyer, Andrew pointed to several incidents over a three-year period to support his contention. For example, Andrew claimed to have overheard two racially disparaging remarks made by visitors to the hospital. A third incident involved what he deemed an inappropriate joke a co-worker made during a meeting.
Finally, Andrew recounted having heard about three other incidents from other people, but hadn’t actually been present during those.
A federal district court tossed out his hostile work environment claim, a decision upheld on appeal.
The appeals court reasoned that what Andrew described might have been uncomfortable, but didn’t rise to harassment level. Other than a single joke, the co-worker comments weren’t made in his presence.
The other two comments came from visitors over whom the hospital had little or no control. (Moore, et al., v. Shands Healthcare, No. 14-14202, 11th Cir., 2015)
Final note: Dodging legal liability is one thing; tolerating hurtful speech and harassing behavior by outsiders is altogether another. Have a plan for dealing with disruptive customers and visitors.
Instruct supervisors on how to diffuse racially or sexually charged situations, including when to escort offensive individuals from your premises.
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