Tobias, Torchia & Simon

TT&S Weekly (4/8/19)

This week's contents:

Topic of the Week: Racial Harassment: What you need to know

Thought of the Week

Weekly Comic by Jerry King

Blog of the Week:

Top Five News Headlines

List of the Week: from Workplace Fairness

Topic of the Week Racial Harassment: What you need to know

What is racial harassment?

What types of conduct are considered racial harassment?

What is racial harassment?
Racial harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964. To be considered discrimination, the harassment must be based on some protected trait. Under federal law, those traits include race, color, national origin, gender, pregnancy, age, religion, disability and genetic information.

Racial harassment is unwelcome behavior that happens to you because of your race, color, or national origin, such as verbal or physical conduct of a racial nature.

Racial harassment in the workplace is unlawful when 1) enduring the offensive conduct becomes a condition of continued employment, or 2) when the conduct is severe or pervasive enough to create a work environment that a person would consider intimidating, hostile or abusive. This is also called hostile environment harassment.

Whether harassment is severe or pervasive is determined on a case-by-case basis. However, consideration is given to the following factors:

The frequency of the unwelcome harassment;
The severity of the harassment;
Whether the harassment was physically threatening or humiliating, or a mere offensive utterance;
The effect on the victim’s psychological well-being; and
Whether the harasser was a superior within the organization

What types of conduct are considered racial harassment?

Many kinds of conduct that are of a racial nature may be racial harassment, if the behavior is unwelcome and if it is severe or pervasive. However, courts have resisted adopting what they consider a workplace "code of conduct" or list of behavior that is automatically considered to be racial harassment. As a result, if the conduct is not unwelcome or not severe or pervasive, courts will not necessarily consider each type of conduct listed below to be racial harassment.

Additionally, petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of being unlawful.

Some examples of conduct that may be racial harassment include:

Verbal or written conduct: Jokes; innuendos; slurs; name-calling; comments about clothing, personal behavior, or your body; racial or race-based jokes; telling rumors about your personal life; threatening you; organized hate activity directed at employees
Physical conduct: Rape or assault; impeding or blocking your movement; inappropriate touching of your body or clothing;
Nonverbal conduct: Derogatory gestures or facial expressions of a racial nature; following or stalking you; malicious interference with work performance.
Visual displays: Posters, drawings, pictures, screensavers or e-mails of a racial nature; epithets scrawled on the employer's property; hangman's nooses, Nazi swastikas, or other items understood to have racial significance