That’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post”. So, let’s get right to today’s question:
If a former employee sues for discrimination, claiming to have been subjected to a hostile work environment, must the employee prove that the harasser acted with bad intentions? Put another way, if the harasser was just joking around, does the plaintiff lose the case?
No way! FICTION!!!
An employer is liable for a hostile-work-environment discrimination if the employee can prove five elements:
- the employee was subjected to certain conduct because of the employee’s particular protected class (e.g., race, religion, national origin, gender, sex),
- the discrimination was severe or pervasive,
- the discrimination detrimentally affected the employee,
- the discrimination would detrimentally affect a reasonable person in like circumstances, and
- a basis for employer liability is present.
It does not matter whether the harasser intended to harm the victim. It only matters how the harasser’s action’s impacted the victim (and how someone in the victim’s shoes would feel). This nuance, which many employees do not appreciate, is a crucial point to stress when conducting anti-harassment training — before a lawsuit is ever filed.