Insight on workplace harassment and the reasonable person standard.
Hostile Workplace vs. Employee Rights
With recent events surrounding racial slurs, white supremacist movements, and allegations of racism, we’re being asked what constitutes a hostile workplace. Could a company terminate an employee for off-duty actions such as participation in a rally? Our answer: yes, provided the rally or activity meets specific criteria.
What Constitutes a Hostile Workplace?
According to the EEOC, workplace harassment is “unwelcome conduct based on race, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.” Such unwelcome conduct may include jokes, name calling, threats, assaults, insults, or anything that may offend a victim. “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.”
Because the definition of a hostile work environment is subjective in nature, there’s no specified limit of how many racial slurs or other rhetoric constitute a hostile work environment. In a recent case, just one derogatory comment about Jewish ancestry created a hostile work environment wherein the victim sued and won.
Could a company fire a worker for off-duty actions, including participation in a rally?
Although the First Amendment establishes freedom of speech, employees hired under the “at-will” doctrine of employment (recognized nationwide, with limitations in some states) can be fired with or without cause. When considering disciplinary action for off-duty behavior, SHRM.org suggests employers consider these two questions:
- Are there any special legal factors at issue in this case?
- What effect, if any, does the off-duty behavior have on the employee’s job performance, the workplace, or the company’s image?
When an employee participates in a rally that simply favors one political party over another or supports issues that are protected by legal doctrine, that presents no legal concerns. For example, participation in a peaceful gun-rights rally, the January 2017 women’s march, or a political campaign event would not be grounds for termination. However, when an employee participates in a rally that goes against federal anti-discrimination laws that protect employees of a protected class (race, color, national origin, gender, religion, pregnancy, age, or disability), it does present legal concerns.
All employees have the right to work and should feel safe in a non-threatening environment. When a coworker engages in any activity that threatens an employee from a protected class, it impairs performance, harms a formerly non-threatening environment, and damages a company’s image. (Remember, racism at work isn’t limited to employees feeling threatened; if customers hear a racist remark, they can also sue your company.)
Bottom line: Any employee behavior that may create a hostile work environment, on- or off-duty, should be subject to disciplinary action, up to and including termination. For more information, please contact our HR experts at HR@stratus.hr.
To determine whether something is “harassment,” you should take the victim’s perspective and decide if a “reasonable person” would consider it to be intimidating, hostile, or abusive.