BUSINESS LAW: A single comment can create a claim

2013-05-18T15:37:00Z BUSINESS LAW: A single comment can create a claimJames L. Jorgensen Times Business Columnist
May 18, 2013 3:37 pm  • 

The law does not guarantee a perfect workplace. Courts do not want to be super-human resource departments, potentially reviewing every slight felt by employees.

To what extent then can a single comment give rise to a claim? Similarly, do occasional offensive and inappropriate comments give rise to a hostile work environment? Two recent cases answered these questions.

In the first case, a black employee had a contentious meeting with his supervisor. In the heat of the moment, the supervisor yelled: “Get out of my office, (racial slur).” Additionally, after the employee complained, he was ordered to continue to work with the supervisor three more months.

In a subsequent lawsuit, the court held that the supervisor’s use of the N-word alone established a hostile work environment. The court noted that perhaps no act can more quickly alter the conditions of employment than a supervisor’s use of the N-word.

How about question two? If one comment can give rise to a claim, shouldn’t occasional ones do so as well? Not necessarily – it depends upon the facts.

In the second case, a female employee worked six months for a construction company. During this period, on four occasions, but never more frequent than once a week, the female was subjected to gender/sexual-based offensive comments. Did these occasional comments (four comments in six months) create a hostile work environment?

The court answered “no." By themselves, each comment (unlike the comment in the first case) was not severe enough to give rise to a claim. Taken together, four comments during six months also did not give rise to a hostile work environment. There was no physical harassment, such as an unwelcomed touching, and there was no evidence that the comments interfered with the female employee’s work.

Both cases should have been avoided. Employers must train supervisors to not make offensive and discriminatory comments, even only if occasional. As the first case indicates, legally, even one bad comment may be one too many.

Opinions are solely the writer's. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.

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