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However, as you can see above not only must the environment be intimidating, hostile, and/or offensive, the hostility you are enduring .This means that if your boss is a jerk to everyone including you, you won’t have a hostile work environment claim–the harassment must be based on your membership in legally recognized protected class.However, the issue of harassment has become increasingly well known and by fiscal year 2003, 17.6% of the total discrimination charges filed with the EEOC were harassment claims. This makes harassment determinations difficult – not just for courts attempting to apply legal standards – but for human resource professionals and employment law specialists attempting to determine whether actionable harassment has occurred. In deciding how much is enough, courts generally consider "the totality of the circumstances," including: the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct is physically threatening and whether the conduct unreasonably interferes with an employee’s work performance.Hostile Work Environment For harassment to be actionable under Title VII the offensive conduct must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile working environment. No one factor is required in order to find actionable harassment, and there is no precise formula to use when considering these factors.In today’s Fast Legal Answers series, I’ll be defining and explaining what a “hostile work environment” is. How does it relate to discrimination and protected classes?
For example, a plaintiff in an Eleventh Circuit Court of Appeals case alleged that her male supervisor called her at home, told her she was beautiful, made a comment about the "purity" of Indian women, unzipped his pants to tuck in his shirt, touched her on the knee, touched the hem of her dress and touched her jewelry. Generally, when events are concentrated over a finite period of time, the employee’s claim is stronger than when events are scattered over a longer period of months or even years. However, the court found the comments were pervasive enough to allow Santana’s harassment claim to proceed to trial. Alfano claimed a supervisor told her she could not eat carrots, bananas, hot dogs or ice cream on the job because she did so "in a seductive manner." She also complained that a notice was posted that read, "Carrots will not be allowed in the visiting area due to Sgt. Brooks sued the city following an incident of inappropriate touching.A case perhaps closer to the innocuous end of the hostile work environment continuum, Alagna v. Frequently, Yates ended these conversations by touching Alagna’s arm and telling her that he loved her and that she was very special. The coworker asked her out on a date, told her he wanted to "eat" her and described various sexual fantasies he had about her. The employer moved to dismiss Jones’ suit, arguing the conduct was not sufficiently severe or pervasive enough to constitute actionable harassment.However, he never discussed sexual activities related to his relationships, never sexually propositioned Alagna and never touched her anywhere other than her arm. Birchstein complained to her foreman, and the co-worker stopped speaking to her. However, the court denied the motion to dismiss, noting that the episode rose to the level of sexual assault. The plaintiff never claimed that the phone calls at home were in any way intimidating, and she admitted that her supervisor never made sexually explicit remarks or innuendoes.Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.Essentially, harassment occurs when a person suffers consistent and unwanted, and objectively offensive, conduct at work as a result of their membership in a protected class.
The Eighth Circuit Court of Appeals found that Yates’ conduct, however inappropriate, was not sufficiently severe or pervasive enough to survive the "high threshold" for actionable harm required to establish a hostile work environment harassment claim. However, he began staring at her for several seconds at a time at least five to ten times per day. The trial court granted the employer’s motion to dismiss, but the appellate court reversed, finding that staring at a co-worker could qualify as actionable sex harassment, especially following the explicit sexual comments made to Birchstein. The court also noted that because the woman only hit male co-workers in the groin, the incident carried objectively sexual overtones and, based on the totality of these circumstances, the court found the incident sufficiently severe to survive the motion to dismiss. She further admitted that the shirttucking incident occurred on a day when the air conditions was broken and she came into her supervisor’s office unexpectedly. Alice Santana, the only Hispanic individual at the temporary staffing agency where she worked, brought a race and national origin harassment suit against her former employer following her resignation.