What amounts to actionable harassment?
To succeed on a hostile work environment claim, an employee must show that he or she was harassed by conduct that was either severe enough or sufficiently pervasive to change the conditions of employment and create a hostile or abusive work environment for employees because of their sex.
What is "Severe Conduct"?
The severity of the conduct refers to the nature of the harassing conduct. To be severe enough to trigger liability, the conduct must be sufficiently egregious to make the employee's work environment hostile.
Several Factors are Considered in Determining Severity:
- Frequency of Harassing Conduct: The required showing of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. The frequency of the harassment directly affects the level of severity required to establish a hostile or abusive work environment. The more incidents of harassment, the less severe the incidents need to be. The less incidents, the more severe they need to be. An isolated incident must be extremely serious to amount to a discriminatory change in the terms and conditions of employment. Specifically, a single incident may qualify as sufficiently severe if it consists of physical harm or threat of physical harm.
- Intensity of Harassing Conduct: The intensity of each incident of harassment also affects the determination of severity. This refers to the level of offensiveness, harmfulness, abusiveness, or hostility to the employee that each occasion of harassment, such as a comment, touching, or gesture. The level of the conduct's effect on the employee must be determined based on the effect that such an incident would have on a reasonable person in the employee's position.
- Physically Threatening, etc.: The severity depends on whether the conduct was physically threatening or humiliating, or whether it was merely an utterance (a voiced comment). While a voiced statement may be sufficiently severe, that fact that the conduct threatens the victim's physical well-being or humiliates the victim is especially effective to prove severity.
- Directness of Harassing Conduct: Whether the conduct was directed at the employee or at others is relevant to a finding of sufficient severity. It is still considered sexual harassment when the conduct is not directed at the particular employee (plaintiff) but is instead directed at other people in the workplace. However, this indirect conduct is generally considered less offensive and severe than conduct directed at the employee (plaintiff). Therefore, if there is only sexually harassing conduct directed at others (not the employee plaintiff), there must be additional evidence to prove that the conduct created a hostile or abusive work environment. Furthermore, a plaintiff who was not personally subjected to offensive remarks and touchings must show that the sexually harassing conduct permeated his or her direct work environment, meaning that the plaintiff's work environment was harmed even though the comments were not to him or her or about him or her.
- Unreasonable Interference with Work Performance: The most important factor in determining whether the conduct created a hostile or abuse work environment is whether it unreasonably interfered with the victim employee's work performance. In other works, if the conduct prevented the employee from performing his or her work duties to the extent that they would be performed if the harassing conduct was not present, the conduct is more likely to be found sufficiently severe.
- Corrective Action by Employer: Whether or not the employer takes immediate corrective action affects the determination of severity. The employer's failure to immediately take action in an attempt to lessen the harmful effect of the misconduct or to prevent the conduct in the future increases the severity of the conduct. Likewise, when the employer acts to reduce the harasser's ability to commit the misconduct in the presence of the victim, this reduces the severity of the misconduct. For example, when an employer moves the employee that committed the misconduct to another department to prevent further contact between him or her and the victim reduces the misconduct's severity.