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Harassment's tipping point: Is the magic number 'more than once'?

By Mindy Chapman, Esq., Mindy Chapman & Associates
3/27/2008 - 1:00pm
Discrimination & Harassment

Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

Sometimes it just seems like good old-fashioned ribbing between co-workers. But when does insensitive teasing turn into an illegal hostile work environment that violates Title VII of the federal Civil Rights Act? One court said that while individual incidents may be viewed as singular events, courts will view all incidents “as a whole” when deciding if they add up to unlawful harassment.

Case in Point: Gloria Nieves was of Colombian origin and worked at a deli in Delaware. Her co-workers ridiculed her because of her limited English skills. They suggested that she knew a lot about drugs because she was from Colombia. They frequently joked about the status of her green card. She was allegedly called “stupid” by a co-worker. Another co-worker admitted that Nieves was called racial slurs behind her back and given the nickname of “Chihuahua.”

While Nieves complained to her managers, they took no action. Management even denied that Nieves ever notified them about the incidents, even though a co-worker testified that she overheard Nieves complaining at least once.

Nieves reported experiencing chest pains and crying spells because of all the comments. Eventually, she filed discrimination claims with the EEOC and state labor department and a lawsuit under Title VII for harassment based on national origin.

The deli responded by arguing that the co-workers’ conduct wasn’t severe enough to be unlawful under Title VII. That left the court with this question: How much harassment is enough to tip the scales into being unlawful? (Nieves v. Acme Markets Inc., D. Del., March 7, 2008)

How Did This Case End … And What Lessons Can Be Learned?

The court sided with Nieves and allowed the case to go to trial. It rejected the company’s argument that the harassment and discrimination was not severe enough to rise to the level of unlawfulness. The court said that if repeated acts of insensitivity were “taken as a whole,” a reasonable jury could find that they showed unlawful discrimination against Nieves. Critically, the court noted that some acts happened more than once.

The court relied heavily on the testimony of one of Nieves’ co-workers, who described the deli as "like in the 1960’s in a small town down South where everybody is racist."

3 Lessons Learned … Without Going to Court1. Draw the line between teasing and harassment.
Supervisors may try to shrug it off as horseplay, ribbing or poor social manners. But the courts are now calling it harassment and discrimination. Train all employees on your anti-harassment policy and the consequences for violating it. No exceptions.
2. Promptly respond to all complaints.
Train your managers and supervisors that once they are on notice of a potential violation of your anti-harassment & discrimination policy , they’re required to take prompt, effective action to stop the conduct. Employers are then obligated to promptly investigate all claims.
3. Have a stricter policy.
Your anti-harassment & discrimination policy should be stricter than the law. That way, all "insensitive” conduct is strictly prohibited in the workplace. It’s always better to have stricter rules than to have to argue to the court that the conduct was not so “severe’ or so “pervasive” to be unlawful. It’s baloney to have to work in that kind of an environment today.

Tags: discrimination, employees, management

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