Page 20: of Marine News Magazine (March 2017)

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LEGAL

Effective Harassment Prevention Training

When is bad harassment prevention training worse than no training at all?

By Lee Seham, Esq.

When is bad harassment preven- ity or pervasiveness is intense enough to effectively change tion training worse than no training the terms or conditions of the plaintiff’s employment.

at all? When it comes with a wagging Harassment prompted by discriminatory animus cannot ? nger shaming employees whose only be successfully defended on the grounds sin is being a little rough around the that hostile conditions are embedded in the prevailing edges. When it emboldens opportu- workplace culture. There is no assumption-of-risk defense nistic employees to seek an advantage to charges of workplace discrimination. Consequently, the they do not deserve. When it causes common taunt – “if you can’t stand the heat, get out of the managers to cravenly subordinate le- kitchen” – is a legally indefensible response to workplace

Seham gitimate operational considerations to harassment prohibited by Title VII.

political correctness. But at the same time, there is no federal legal right to work in an environment free of brusqueness, vulgarity, or

EFINING THE AW

D L even profanity when the offensive behavior is devoid of

Title VII of the Civil Rights Act of 1964 does not man- discriminatory content or intent.

date a general civility code. Nor does it prohibit all verbal or physical harassment in the workplace. Title VII does not I R L

N EAL IFE extend to harassment per se, but rather harassment that is In Gross v. Burggraf Construction Co., 53 F.3d 1531 discriminatory in nature. (10th Cir. 1995), a construction supervisor, among other

Moreover, Title VII only prohibits discriminatory harass- things: (1) described his female subordinate as “dumb,” ment when it reaches a level that is “severe or pervasive.” (2) yelled at her to get her “ass back in the truck and don’t

This limitation arises from the fact that the term “harass- you get out until I tell you,” and (3) stated to co-workers ment” appears nowhere in the statute’s text. Rather, the key via radio “sometimes don’t you just want to smash a wom- operative language provides that an employer may not dis- an in the face?” criminate against an individual with respect to his “compen- In dismissing the action, the Tenth Circuit took into sation, terms, conditions, or privileges.” The Supreme Court consideration the nature of the industry: “In the real world adopted the “severe or pervasive” standard in order to shoe- of construction work, profanity and vulgarity are not per- horn the harassment concept into the “terms” or “condi- ceived as hostile or abusive. Indelicate forms of expression tions” language. Put another way, discriminatory harassment are accepted or endured as normal human behavior. Ac- does not become actionable under Title VII unless its sever- cordingly, we must evaluate Gross’ claim of gender dis-

March 2017

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