The Virginia Business Litigation Blog
So you want to sue your boss for harassment. For years, you have put up with his antics, but now you’ve had enough. He has humiliated you in front of your co-workers, berated you for trivial things, and insulted you. Basically, he is a jerk. But do you have grounds for a lawsuit? Has your boss “harassed” you within the meaning of Title VII of the Civil Rights Act of 1964?
Federal anti-discrimination statutes do not prohibit all harassing behavior. They do not guarantee that your boss will be “nice” to you. They do, however, offer powerful protection against unwelcome verbal or physical conduct based on race, color, religion, sex, gender identification, national origin, age (if you are 40 or older), disability (mental or physical), sexual orientation (depending on the circumstances and jurisdiction), and retaliation against an employee who complains of discrimination, participates in an investigation, or voices opposition to discriminatory practices.
Your employer’s unwelcome conduct may constitute actionable “harassment” when: (1) The conduct is sufficiently severe or pervasive to create a hostile work environment;
or (2) A supervisor’s harassing conduct results in a tangible change in your employment status or benefits (for example, demotion, termination,
failure to promote, etc.). A hostile work environment is a work environment that a reasonable person would find intolerable due to the frequency, severity or pervasiveness of objectionable words, actions or other materials that direct hostility at a person because of his or her sex, ethnicity, race or age.
This means that mild teasing or a single, isolated remark may not be enough to establish liability, even if based on race (for example). For a racist or sexist remark to create a “hostile work environment,” the unwelcome comment would need to unreasonably interfere with an employee’s work performance, or create an environment that a reasonable person would find intimidating or offensive. Usually, this happens when there is a pattern of improper conduct as opposed to a single incident.
In the context of sexual harassment, examples of behavior found to constitute a hostile work environment include:
- Telling dirty jokes, hanging sexual posters, making sexual gestures, etc.
- Circulating sexually suggestive letters, notes, emails, or images
- Leering or staring at someone in a sexually suggestive manner
- Making sexually suggestive remarks about looks or body parts
- Inappropriate workplace touching (e.g., patting, pinching or brushing up against another’s body intentionally)
In other contexts, the following behavior (if sufficiently severe or pervasive) may constitute actionable harassment:
- Use of racially derogatory words, phrases, epithets
- Use of gestures, pictures or drawings which would offend a particular racial or ethnic group
- Comments about an individual’s skin color or other racial/ethnic characteristics
- Negative comments about an employee’s religious beliefs (or lack of religious beliefs)
- Expressing negative stereotypes regarding an employee’s ancestry
- Negative comments regarding an employee’s age (when referring to employees 40 and over)
- Derogatory or intimidating references to an employee’s mental or physical impairment
If you have been the victim of unlawful harassment, you should report the behavior to your supervisor and consult an attorney. If your supervisor is the one harassing you, report the conduct to another member of the management team or to your company’s human resources department.