A few brief incidents can create ‘pervasive’ harassment — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

A few brief incidents can create ‘pervasive’ harassment

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in Discrimination and Harassment,Firing,Human Resources

Three Hispanic men were hired as a house-painting crew for a contractor. Typically, the crew checked into the company's office for only two minutes to 15 minutes a day, once in the morning to get a work order and once at day's end to clock out.

During those few minutes in the office, the men said they were either called, told about or overheard many racial slurs. Three weeks after they were hired, the men complained about the unprovoked comments and were fired.

The workers filed suit, claiming the company discriminated against them because of race by subjecting them to a hostile environment and then firing them for complaining.

A lower court dismissed the case, saying the offensive behavior didn't last long enough for the harassment to be judged pervasive. But a federal appeals court let the case proceed, saying that the "totality" of the circumstances could allow a jury to find the harassment pervasive. (McCowan, et al. v. All Star Maintenance Inc., 10th Cir., No. 00-2040, 2001)

Translation: Employees could win a hostile work environment claim even if they only spend a few minutes a day in a racially charged work environment.

The company unsuccessfully claimed that because the men worked for only three weeks and spent a short time in the office, the environment couldn't be racially hostile. The circumstances cut both ways, the court said. The workers' fast exit supports the inference that the abuse was so offensive that it tainted the entire job site, and drove workers away.

Advice: Spread the word that even brief brushes with discriminatory language pertaining to race, sex, religion, disabilities or national origin will be punished in your workplace. Put that warning in writing, and announce it at your next staff meeting.

Also, don't even try the "men will be men" defense. This company argued that the harsh language used at the work site reflected "the coarse dominions of the construction industry." Federal discrimination law doesn't bend based on industry.

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