Workplace Harassment Isn’t Just About the Victim
In May 2011, Hispanic employees at a Dallas transportation company sued their employer for what they alleged was a hostile work environment. That doesn’t sound remarkable, but what makes this case interesting is the fact that these workers were not suing because they were being harassed, but felt they were victims because they had observed or heard about workplace harassment aimed at black employees in the company. This, their lawyers argued, made it a hostile environment because if blacks were finding it hostile, Hispanics would too.
While the employer won this particular case, there will likely be more cases in which employees attempt to sue employers for treatment of fellow employees who belong to a different protected class, according to an article in Business Management Daily, by the HR Specialist: Texas Employment Law. The key in this case is the employee’s inclusion in a protected class.
Can a Witness Sue?
“Individuals who witness harassing behavior based on an individual's status in a protected class do not have a separate cause of action, unless they too claim that the workplace is hostile and the hostility is based on their own status in a protected class,” says Stephen McQuade, a New York employment attorney with Certilman Balin Attorneys, and Chair of NYCLA's Labor Relations and Employment Law Committee.
He gives an example of a male employee who sees his female co-worker receiving lower wages than other male employees doing the same job. Generally speaking, he doesn’t have his own claim against the employer, says Mc Quade. However, employees who participate, file a claim, or testify on behalf of those being harassed and are then subjected to an “adverse employment action”, do have protection under the laws.
“They would be able to bring a retaliation claim, which is not always tied to an individual's status in a protected class,” he says. In the example above, if that male employee made a statement before an administrative agency or even the employer's own HR department in support of his co-worker's claims, and then was demoted, he could sue the employer for retaliation, says Mc Quade.
But it’s not just employees from protected classes, or those who suffer retaliation, who experience the consequences of what happens to their coworkers. Employees who witness or hear about harassment in the workplace are all affected in some way.
“Other employees in the company are often interviewed by management and then called as witnesses if a claim is made,” says Thomas Simeone, a Washington, DC, trial attorney with Simeone and Miller, LLP. “This creates a very uncomfortable position for them - they want to speak the truth (and may, in fact, have suffered from the same hostile work environment), but they feel they are risking their jobs by testifying against their employer (particularly in bad economies or for workers who do not have other work options). It is not uncommon for witnesses to ‘not remember’ or to otherwise not testify as favorably as the claimant thinks they will.”
Witnessing harassment or working in a hostile environment is damaging to all employees, regardless of their involvement or its legal implications. Low morale, lack of motivation and culture of fear can develop and that is bound to affect the atmosphere of a company and, ultimately, its productivity.