Federal and Illinois law prohibit workplace harassment that is based on a person’s protected characteristic. Protected characteristics include sex, race, age, religion, ethnicity and disability. An employer may be liable if an employee is subject to harassing conduct that creates a hostile work environment. To recover damages, the plaintiff must prove:
1. He or she was subject to harassing conduct
2. The conduct was based on his or her protected characteristic.
3. The harassing behavior was severe or pervasive
4. The employer is somehow liable
“Severe or Pervasive”
To determine whether the harassing conduct was severe or pervasive, the court considers:
- How severe was the conduct?
- How often was the plaintiff harassed?
- Whether a reasonable person would have felt physically threatened or humiliated by the behavior, or was it just an inappropriate comment
- Whether the plaintiff could not reasonably perform his or her work duties because of the conduct
What is Severe?
Courts do not focus on discrete acts of harassing conduct when evaluating a hostile work environment claim. Instead, they look at the entire context of the workplace. A few comments that are inappropriate and suggestive of ignorance on the part of the speakers do not satisfy the “severe” requirement.
For example, in one case, the court found that two ethnically offensive comments during a two-year period did not create a hostile work environment. On the other hand, a one-time act can qualify as “severe.” One incident of workplace sexual assault or one instance of a supervisor calling an African-American employee the “N” word in the presence of other subordinates can create a hostile work environment.
What is Pervasive?
“Pervasive” means that the workplace is charged with discriminatory intimidation, mockery or abuse such that enduring that behavior becomes a term of the plaintiff’s employment. In a recent Illinois case, a Cuban-Jewish employee was subject to 70 separate incidents of racial, religious and ethnic harassment over a three-year period. Workers had sprayed graffiti around the employer’s plant that said terribly offensive and intimidating epithets. Any one of these 70 incidents was probably severe enough to sustain a hostile work environment claim, but the harassing conduct was certainly pervasive enough for the court to send the case to the jury who found in favor of the employee.
Under federal law, an employer is responsible for the harassing conduct of a supervisor. The supervisor must be someone who had authority over the victim. Under Illinois law, however, an employer is liable for the harassing conduct of any supervisor, even if he or she did not supervise the victim. An employer is responsible for the harassing behavior of a non-supervisory employee only if the employer knew or should have known about the conduct and failed to take reasonable corrective action.
Protect Your Rights
Employees who believe they have an employment claim should act quickly. They must file a charge of harassment with the Equal Employment Opportunity Commission or the Illinois Human Rights Commission within 180 days from date of the harassing conduct. Employees should also seek the opinion of an experienced Chicago employment law attorney who can evaluate the claim for its strength and monetary value.