Tuesday, June 18, 2019

What’s a hostile work environment? You’ll know it when you see it.

“I know it when I see it.” These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).

I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? It’s hard to define, but I know it when I see it.

For example, consider the case of Curtis Anthony, an African-American quality inspector for Boeing at its North Charleston, South Carolina, plant, sued his employer for allowing a racially hostile work environment.

According to ABC News, his allegations include white co-workers urinating in his seat and on his desk, leaving signs with the “n-word” near his workspace, and ultimately leaving a noose above his workspace. Boeing, for its part denies the allegations, stating that Boeing spokesperson wrote, that Anthony “is a valued Boeing South Carolina teammate, [and] there is no validity to his allegations.”

Bingo. Hostile work environment. I can’t necessarily define it, but I know it when I see it.

Regardless of whether an employee can hold you legally responsible for, let’s say, another employee peeing on his desk, why would let this misconduct go unchecked? Even if you think it’s just horseplay, you can’t ignore it.

If an employee complains about misconduct, your reaction should never be, “Well, I understand, but it’s not that bad, or at least not bad enough for you to sue us; now go back to work.” Your obligations as an employer-recipient of complaint of workplace harassment never changes—investigate and take prompt remedial action to reasonably ensure that the harassment stops and does not repeat. Otherwise, you are setting yourself up for a very difficult and expensive lawsuit. In other words, urine trouble (sorry … not sorry).