Employers can still be liable, even if harasser means no harm

We’ve all experienced it – the boorish co-worker who makes inappropriate comments and then says, “I was just kidding, I didn’t mean anything by it.”  The question for employers and their counsel is this – does it matter if the harasser’s intentions were indeed innocent?

In a word, no. The harasser’s intentions are basically irrelevant, except perhaps on the issue of whether the plaintiff is entitled to punitive damages, for which proof of willful or malicious misconduct is required.

As for liability for harassment, the law focuses on whether the conduct and words at issue created a work environment that was hostile to that particular employee and would be hostile to a reasonable person standing in that employee’s shoes (i.e., same race, gender, or other relevant status).

The Tenth Circuit U.S. Court of Appeals, which sits in Oklahoma City, ruled recently in Lounds v. Lincare, Inc., that the employer could not escape liability for racial harassment by focusing on whether the actors who uttered the racial comments had “benign intent,” versus an intent to be offensive or cause harm. Rather, the issue was whether a reasonable jury “could find that the subjective and objective effect of their conduct [including frequent use of a variation of the N-word, telling an employee to “get ghetto,“ and references to lynching] was to pollute the environment with harassing conduct that was, inter alia, racially humiliating, offensive, or insulting.”–

In other words, even if the harasser was “just kidding,” that was legally immaterial.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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