Substantiating racial or sexual harassment

​One of the biggest complaints I hear is from people who tell me that their boss or other coworker sometimes makes racial comments or offensive remarks about where someone is from. They always ask, can I bring a claim against my employer for harassment? Is it like sexual harassment?

Most judges would answer that you can only bring a claim for racial harassment if you can prove the same elements needed for proving sexual harassment: that the harassing comments must be pervasive and so frequent that they create a hostile work environment. Some judges trivialize or even condone racial comments by calling them simple stray remarks that are not actionable even when they are frequently repeated.

However, this is not correct. Claims for racial harassment, particularly when racial slurs are involved, should require far less proof and far less frequency than claims for sexual harassment. Unlike sexual harassment, a racial remark spoken even once leaves no doubt as to how the speaker feels about race. It is intentional and designed to hurt and anger.

Sexual harassment is not so clear because it can result from someone’s genuine attraction to another. Sometimes a man will make sexual comments to or make juvenile attempts to get the attention of a woman with whom he hopes to start a relationship. His overtures make her uncomfortable but once she tells him to stop or that she is not interested, his continuing such conduct then becomes harassment.

With race, a single comment, in and of itself, is proof enough of the speaker’s intent to inflict harm.

No one should experience racial or ethnic harassment at work. Judges need to be educated on how destructive and toxic this type of conduct is both for the intended target of the remark and for everyone else who hears it. When this happens, an attorney should be consulted immediately to bring a claim so that employers quickly learn that this type of conduct is wrong and should never occur in the workplace.