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The Practical Employer

What It Takes to Create a Hostile Work Environment

If you want to eliminate the judicial vagaries of what constitutes a hostile work environment, establish a zero-tolerance workplace for this type of misconduct.
Last week, I nominated Target Corp. and MarketSource for the worst employer of 2017, because they ignored the approximately 10 incidents of vile ethnic harassment a Palestinian employee suffered during the brief two-month tenure of his employment. Almost as bad was the logic of the 8th Circuit Court of Appeals, which concluded that, as matter of law, the employee failed to state a claim for ethnic harassment because the “morally repulsive” comments “were not physically threatening.”
Some courts, however, do get this issue correct. Case in point? The 2nd Circuit Court of Appeals, in Ahmed v. Astoria Bank (5/9/17) [pdf].
Ahmed, an Egyptian Muslim, alleged that her senior supervisor, Anthony Figeroux, repeatedly subjected her to ethical and religious slurs, such as “constantly” telling Ahmed to remove her hijab, which he referred to as a “rag,” and making a comment during her interview (which happened to be on Sept. 11) that Ahmed and two other Muslim employees were “suspicious” and that he was thankful he was “on the other side of the building in case you guys do anything.”
According to the court, the evidence “could lead a reasonable jury to find that Ahmed was subjected to ‘a steady barrage of opprobrious racial’ and anti‐Muslim comments and conduct constituting a hostile work environment.”
The conduct in Ahmed was significantly less severe or pervasive as compared to the conduct alleged against Target, et al., which included slurs like “camel jockey” and “sand nigger.” Yet, this court still had little difficulty concluding that a jury, and not a judge, should decide whether the slurs and other anti-Muslim comments created a hostile work environment.

Let me suggest the following. If you want to eliminate the judicial vagaries of what does, or does not, constitute a hostile work environment, establish a zero-tolerance workplace for this type of misconduct. Simply don’t stand for it. How?

  1. Create an environment in which employees feel free and open complain to anyone about anything.
  2. Take all complaints seriously and investigate.
  3. Implements reasonable corrective action that helps ensure this conduct will not repeat. And, for this level of misconduct, for these types of statements, that action would be termination.
These steps feed themselves. It’s the circle of harassment prevention. You create an open environment to complain by investigating and correcting. Actions speak louder than words, and your attitude toward harassment must match or better your written harassment policy. And when all three of these steps work in harmony, you end up with as harassment free of a workplace as you can hope to achieve.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.