To many people, workplace harassment means sexual harassment, perhaps because many of the cases receiving media attention involve the more scandalous and salacious side of unlawful harassment. But harassment claims can be based on allegations of unlawful discrimination against members of any of the protected categories, which include race, national origin, religion, sexual orientation, marital status, and disability.
In terms of unlawful harassment, since 2000 there has been a steady decline in sexual harassment charges filed with the EEOC. Actionable workplace harassment of a nonsexual nature falls into three general categories: harassment because of affiliation or association; harassment because of physical or cultural traits; and harassment because of perception.
Affiliation or association. The first category is harassment based on an individual’s affiliation with a particular religious or ethnic group. Examples include harassing a person because he or she is Arab or practices Islam, or paying an employee less because he or she is Hispanic or Asian.
Harassment based on association is similar. It includes harassing behavior or other discrimination because of an individual’s association with a person or organization of, for example, a particular religion or ethnicity. Examples would be harassing an employee whose husband is from Mexico or refusing to promote an employee because he or she attends a particular church.
An ethnic slur or other verbal or physical conduct can constitute harassment if the behavior creates an intimidating, hostile, or offensive working environment, unreasonably interferes with work performance, or negatively affects an individual’s employment opportunities.
In a fact sheet developed by the EEOC about what an employer can do to address the unique issues raised by national origin and ethnic discrimination, the problem of harassment is addressed specifically. According to the EEOC, the primary applicable law, Title VII (see sidebar), “prohibits offensive conduct, such as ethnic slurs, that creates a hostile work environment based on national origin. Employers are required to take appropriate steps to prevent and correct unlawful harassment.” The commission also has prepared a companion fact sheet to answer questions that commonly arise regarding this issue.
To illustrate the potential problem and suggested response, the EEOC poses the following hypothetical situation and appropriate response:
“Muhammad, who is Arab- American, works for XYZ Motors, a large used car business. Muhammad meets with his manager and complains that Bill, one of his coworkers, regularly calls him names like ‘camel jockey,’ ‘the local terrorist,’ and ‘the ayatollah,’ and has intentionally embarrassed him in front of customers by claiming that he is incompetent. How should the supervisor respond?”
Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to correct the conduct of anyone under their control, according to the EEOC. In this case, Muhammad’s manager should relay Muhammad’s complaint to the appropriate manager if he does not supervise Bill. If XYZ Motors then determines that Bill has harassed Muhammad, it should take disciplinary action against Bill that is significant enough to ensure that the harassment does not continue.
Physical or cultural traits. The next category is harassment because of physical, cultural, or linguistic characteristics, such as an accent or dress associated with a particular religion, ethnicity, or country of origin. Examples of this behavior include harassing a woman for wearing a hijab (a body covering or headscarf worn by some Muslims) or not hiring a man with a dark complexion and an accent because he is believed to be Hispanic.
Although it is not explicitly included within the statutory language, at least two federal appeals courts have found a cause of action for disability-based harassment under the Americans with Disabilities Act (ADA), and a third court has found a cause of action for a disability-based hostile work environment.
In 2001, the U. S. Court of Appeals for the Fifth Circuit held for the first time that an individual may file a lawsuit against an employer for harassment on account of disability under the ADA. In Flowers v. Southern Regional Physician Services Inc. (U. S. Court of Appeals for the Fifth Circuit, 2001), the plaintiff had notified her employer of her HIV-positive status by advising her immediate supervisor, who also was her close friend. According to the claim, the supervisor would no longer speak to the plaintiff, and she intercepted her phone calls, eavesdropped on her conversations, and hovered around her desk. Further, before her HIV was discovered, the plaintiff had been required to take only one random drug test. After making her illness public, she had to take four random drug tests within a week. Also, before the discovery, the plaintiff received high marks on performance appraisals, but within a month of the discovery, she was reprimanded and placed on probation for 90 days. After that probation ended, she was placed on another 90-day probation.
Following these probationary periods, the plaintiff was repeatedly called into meetings where she was mistreated by supervisors. Finally, at one of these meetings, she was terminated.
Although a jury ruled that her disability was not a motivating factor in her termination, they found that she was subjected to disability-based harassment that created a hostile work environment. She was awarded $350,000 by the jury, which was reduced by the court to $100,000. The U.S. Court of Appeals for the Fourth Circuit became the second federal appeals court to hold that disability-based harassment may constitute a cause of action under the ADA. In Fox v. General Motors Corp. (U.S. Court of Appeals for the Fourth Circuit, 2001), the plaintiff claimed that his supervisors referred to disabled workers as “911 hospital people.” In addition, he claimed that although his immediate supervisors attempted to accommodate his restrictions, other supervisors and coworkers harassed him and ordered him to perform jobs that he was physically unable to do. The employee filed a lawsuit against his employer for harassment based on disability.
The court ruled in favor of the plaintiff. In its decision, the appeals court observed the similarity in the language of the ADA and Title VII, which prohibits discrimination in “terms, conditions, or privileges of employment,” and in the remedial purposes of the two statutes.
The judge noted, “we have little difficulty in concluding that the ADA, like Title VII, creates a cause of action for hostile work environment harassment.” The court affirmed a jury’s compensatory award of $200,000 and further affirmed the plaintiff’s request for medical expenses of $3,000.
Perception. Another area of discrimination litigation that has developed is bullying behavior, which can be the basis for unlawful harassment based on perception. In a July 2004 study, the National Institute for Occupational Safety and Health found that most incidents of workplace bullying are between employees. Of the 516 private and public organizations surveyed, 24.5 percent reported instances of bullying in the workplace during the previous year. The survey defined bullying as “repeated intimidation, slandering, social isolation, or humiliation by one or more persons against another.”
In Dick v. Phone Directories Company (U.S. Court of Appeals for the Tenth Circuit, 2005), the federal appeals court ruled that a female employee could proceed with a same-sex harassment claim. However, the case was based on the treatment the employee received at the hands of other workers. She was repeatedly bullied by her co-workers because of sexual orientation.