Can an employer be sued for inappropriate behavior?

Can I sue my boss if they have a bad temper?

A bad temper by your boss in itself is not enough, nor is simple teasing, offhand comments or isolated incidents that are not extremely serious.

Generally speaking (depending on exact facts and circumstances) you may have an actionable case if the unwelcome comments or conduct:
– is so severe or pervasive as to interfere with your work performance; and
– creates a hostile working environment; and/or
– is based on a protected characteristic (ie. disability, age, gender, religion, race, sexual orientation, rejection of sexual harassment/advances, etc.)

Unfairness, poor communication and other such gripes are not illegal. Obnoxious, rude or similar inappropriate behavior such as talking loudly, leaning over a desk when talking to a coworker, or snapping gum does not create a hostile work environment.

 

What is a hostile work environment?

A work environment that a reasonable person would consider intimidating, hostile or abusive. Sexual harassment can create a hostile work environment. Telling sexually explicit jokes and sending images of nudes, on the other hand, would create a hostile work environment. Asking for sexual favors, yelling all day every day, telling offensive jokes or comments about protected categories of people, using slurs or insensitive terms, all can create a hostile work environment. The problem must seriously disrupt the employee’s work to be severe. It will be pervasive if it is all around a worker, continues over time and is not investigated and addressed effectively enough by the organization to make the behavior stop.

Should I sue my employer?

If you feel that you were discriminated against because of a protected characteristic (ie. your race, sex, ethnic background, etc.), you should try to get it resolved as soon as possible. If you feel you are being treated unlawfully, you should try to find other employees or former employees who can back up your claim, agree that you were treated unlawfully or be willing to assert the same claim that they were also similarly treated unlawfully. Your first step should always be to attempt to exhaust all administrative remedies – try to talk to a manager or to a Human Resources rep in confidence. Companies have an interest in retaining their employees and they may not be aware that there is a problem until they are informed of it. Make sure you ask your boss or coworker to stop their behavior. You want to put the offending employee on notice that their behavior is offensive, discriminatory, inappropriate, and that you won’t tolerate the behavior. (In the majority of cases, the employee will stop the behavior. They may not have realized the degree to which you found the actions offensive.)

Most employers have some kind of complaint mechanism, although the process may vary from workplace to workplace. Some employers may have multiple reporting mechanisms which may include the option to report anonymously. In some cases, employers could be immediately held liable (particularly if it’s a quid pro quo case involving a high-power executive), but for others, the person filing the complaint may have to notify the employer and give them the opportunity to take corrective action. After an initial complaint, many employers take steps like launching an investigation, offering council to the person who was harassed and/or the harasser, and interviewing other employees to gain more information about the situation. Give your employer a chance to do the right thing – they may decide to terminate the offending employee’s employment.

If you have tried to address the conduct with the proper authorities at your job and the situation did not change, the next option may be litigation.

 

What are examples of sexual harassment in the workplace?

Sexual harassment is typically defined in two ways: quid pro quo or hostile work environment.

Quid pro quo: someone in a position of power communicates that they will base an employment decision on an employee’s satisfaction of a sexual demand. (ie. if you go on a date with me, I’ll help you get a promotion,” or “if you don’t sleep with me, you’ll never get a raise”). There is a power imbalance at play.

Hostile work environment: more nuanced and refers to behavior that is unwanted and either severe or pervasive. A sexual assault is so significant that it only needs to happen once to be problematic. Pervasive sexual harassment refers to repeated patterns of behavior.

Some examples of sexual harassment in the workplace:

Unwanted touching, including pinching, patting, rubbing or purposefully brushing up against another person

Asking sexual questions, such as inquiries about someone’s sexual history or their sexual orientation

making offensive comments about someone’s sexual orientation or gender identity

displaying inappropriate sexual images or posters in the workplace

sharing sexually inappropriate images or videos, such as pornography or salacious gifs in the workplace

Basically, any actions or words with a sexual connotation that interfere with an employee’s ability to work, or that create an uncomfortable atmosphere, are considered sexual harassment. Coworkers standing nearby when inappropriate sexual comments are uttered may also be affected, even if the comments weren’t directed towards them. Someone of either sex can sexually harass someone else.

 

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