Editor’s Note – Mark Lies II is a labor and employment lawyer and partner with the Chicago, IL, law firm of Seyfarth Shaw LLP. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As the tempo of the national debate over immigration reform involving individuals of Hispanic descent increases, employers are being exposed to additional liability to their Hispanic employees for claims of a hostile work environment due to their national origin. This article will discuss the basis for such liability and how employers can avoid such claims.
Under Title VII of the Civil Rights Act of 1964, it is an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin. Thus, an employer is prohibited from requiring employees to work in a discriminatory, hostile, or abusive environment.
In order to prevail, the employee must be able to establish:
(1) an employee was subjected to unwelcome harassment;
(2) the harassment was based on his national origin (Hispanic descent);
(3) the harassment was severe and pervasive enough to alter the conditions of the work environment and create a hostile or abusive working environment; and
(4) there is a basis for employer hostility (that is, the employee’s supervisor created the hostile work environment or a co-worker created the hostile work environment and the employer was negligent either in discovering or remedying the harassment).
Unwelcome Harassment Based on National Origin
The court decisions have focused on specific conduct by supervisors or co-workers, either verbal or written, which are directed at the employee’s national origin. Some of the more vivid examples include:
• making derogatory comments about the employee’s Mexican ancestry;
• making derogatory comments about non-employees of Mexican ancestry;
• telling an employee that the reason he is not able to perform his job might be because he is Mexican;
• telling an employee that he should learn English or get out of the United States;
• referring to employees as “damn Hispanics;”
• referring to an employee of Hispanic descent as “brown boy, spic, wetback, Julio, or Javier;”
• talking down to employees of Hispanic descent under the supervisor’s breath;
• telling an employee that he is a “dumb spic” and that the employee “should stay home, go on welfare and collect food stamps like the rest of the spics;”
• telling an employee that he “should go back to Mexico” and referencing “KKK” and “white power.”
Severe or Pervasive Conduct
Once there is evidence that this conduct has occurred, the employee must establish that the conduct was either “severe” or “pervasive” in order to establish a hostile work environment prohibited by law. In this inquiry, the court will attempt to evaluate the offensive nature of the individual incidents (e.g., how severe is the conduct, how frequently it occurred, how pervasive is the conduct).
In addition, the court will utilize two standards to determine whether this conduct rises to the level of a statutory violation:
• objective – was the conduct such that a reasonable person would find it hostile or abusive; and
• subjective – did the employee-victim in fact perceive the conduct to be hostile or abusive.
The employer may have several defenses to liability, depending upon whether the alleged harasser is a supervisor who has authority to hire, fire, or otherwise control the employee’s work environment, or whether the harassment was caused by co-workers.
Typically, where the harasser is a supervisor, the employer is vicariously (or strictly) liable for hostile environment harassment caused by a supervisor. There is, however, an affirmative defense (one that the employer must prove) available if the employee has not already suffered any tangible employment action (e.g., termination, demotion, transfer, loss of overtime, etc.).
In order to establish this defense, the employer must show:
(a) that the employer exercised reasonable care to prevent (i.e., developed an anti-harassment policy and trained the supervisor and employees in these requirements) and to correct promptly any harassing behavior (i.e., responding promptly to complaints by conducting a competent investigation and taking prompt, effective corrective action, including discipline, where appropriate, of violators); and
(b) the employee-victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise (i.e., failed to file a complaint with the employer or otherwise utilize the employer’s anti-harassment policy to attempt to prevent or correct the alleged harassment).
When the harassment is caused by co-workers, the employer is not automatically liable as with a supervisor harasser. Hostile work environment claims can arise exclusively from the conduct of co-workers. In this instance, an employer is liable for a co-worker’s harassment when the employer has been negligent is discovering or remedying the harassment. Again the courts will look to whether the employer has an anti-harassment policy, when the employer received or discovered a complaint of alleged harassment, and how rapidly the employer investigated the complaint and took action that was effective to remedy the harassment.
Whether the alleged harassment is by a supervisor or a co-worker, the employer’s most potent weapon to defeat a claim in its entirety, or to reduce its liability, is to:
• have an anti-harassment policy;
• have proof of training of all employees, whether supervisory or hourly, in such policy;
• train human resources personnel in how to intake complaints and conduct an expeditious and effective investigation; and
• document the employer’s response to the complaint after the conclusion of the investigation, including the bases for any corrective action that may be taken.
Due to the sensitivity of immigration issues and a growing activism among employees of Hispanic descent, employers can expect to see a rise in harassment complaints. If the foregoing recommendations are followed, liability should be substantially limited.
Labor and the Law – August 2007 RENDER | back