When harassment is too much to bear

When harassment is too much to bear

In sexual and racial harassment cases, one of the most difficult decisions an employee can make is what to do when the employer is insufficiently responsive to complaints.  It’s safe to say that employers have all learned to parrot the lines “we take allegations of sexual harassment seriously,” and “racial comments are not tolerated in this workplace.”  But sometimes they are.  When an investigation is cursory or a farce, the complaining employee is often faced with escalated harassment, as the bullies realize they are winning, and are not happy that she called in the higher ups.  If the harassment is sufficiently severe and the employee cannot tolerate the atmosphere anymore, is she free to quit?  If she continues to go to work, is the atmosphere perhaps not that abusive after all?  The idea of constructive discharge is commonly rejected by courts.

This is the essential conflict in the case of the Equal Employment Opportunity Commission v.  Central Wholesales, Inc., a company in Laurel, Maryland.  A three year employee transferred to a new department and immediately was subjected to severe racial and sexual harassment.  Her coworkers used the “b” and “n” words daily, a man in an adjacent cubicle had a pornographic screensaver, and when his screen wasn’t being saved, he was watching pornography on it; the employee had to listen to it.  Two male coworkers kept mop-haired dolls in nooses in their offices.  She complained to the coworkers, then to her supervisor, then to the president of the company, and finally to her former supervisor.  For the most part, nothing was done, and her supervisor even made a joke of her treatment.  At that point, the employee left the job and was unable to return.

The EEOC brought suit on her behalf.  The trial court held that the employee was not harassed as a matter of law.  It decided that the sexual harassment was not severe enough, and that the employee left her job before the company could remedy the racial issues.  The Fourth Circuit, often not a friend of the employment discrimination plaintiff, reversed the decision.

Under the law of harassment, an employee needs to show that the harassment was both objectively and subjectively hostile and abusive.  That is, the employee must have found the atmosphere upsetting, and a reasonable person in her position would also have done so.  Under the Fourth Circuit’s precedent, plaintiffs must clear a “high bar” to show that the objectionable conduct was severe or pervasive.  In other words, to make out a case of sexual or racial harassment, the plaintiff has to show that there was so much unwelcome, racially or sexually charged conduct that the employment situation was altered, poisoned.

In this case, the employee did make enough of a showing that she is entitled to a trial.  It is not easy to bring all the elements together, especially when the employee leaves the workplace.  But at least here, the employee’s dilemma, of staying in a toxic environment for the sake of her lawsuit or quitting and preserving her mental health has not doomed her opportunity to make her claim.

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