Just Because You ‘Smiled Your Way Through’ Harassment at Work, That Doesn’t Mean You Cannot Pursue a Hostile Work Environment Lawsuit

On the job, you may have experienced something that was blatantly inappropriate, unacceptable, and wrong, but you may not instantaneously have spoken out. Even if you didn’t, and even if others thought you were “OK” with it, that doesn’t make it OK and doesn’t mean that you cannot use that improper conduct as the foundation of a hostile work environment lawsuit. If it has happened to you at your workplace, reach out to a knowledgeable New York hostile work environment attorney to discuss your legal options.

Have you ever found yourself in a situation where someone did or said something you found highly personally offensive? (We’re confident almost all readers are nodding “yes” right now.) Many of us may say or do nothing. “Unfriending” that guy you graduated high school with — the one who keeps posting memes mocking your ethnicity or your sexual orientation or your religion — would cost you little, but you fear the possible repercussions anyway. You somehow feel an innate urge not to “rock the boat.”

Now, imagine you were subjected to those offensive comments, not on Facebook, but at work. Repeatedly. You know the behavior is wrong and is hurtful to you. But you also know you need that job, and you fear the consequences if you speak out. Would you object, or would you gently smile and laugh (and hope it stops soon)? Whether you are the objecting kind or the laughing type, you may still potentially have experienced an actionable hostile work environment.

Last November, Eater Detroit published a piece authored by a woman of color who worked in that city’s restaurant industry. The title of the piece was tellingly called “I Smiled Through Racism and Abuse at My Restaurant Job, Because I Had To.” For many, “playing along” may feel, not like a choice, but the only choice.

Be aware that, if you smiled and played along at work with the racism or the sexism or another form of harassment, your employer may try to use that against you when you decide, later on, to take them to court. Also, be aware that you can overcome this argument.

A Wide Selection of Well-Worn Racist Stereotypes

Take, for example, L.B., a Black woman who worked at a Rochester periodontist’s office. During her time at the practice, L.B. allegedly experienced a wide array of forms of harassment based on her race. L.B.’s allegations included the time the doctor pulled her by the necklace and called her “Kunta”, the time that same doctor sent a cartoon around the office portraying L.B. as a wild animal, and another time where the doctor said L.B. looked like a “Mammy on the plantation.”

Allegedly, the harassment playing on well-worn racial tropes didn’t stop there. The doctor brought to the office necklaces with words like “b—-” and “slave” on them, said the office should obtain fried chicken for L.B.’s lunch, cracked a joke about L.B. having nothing to eat if a restaurant said it had run out of ribs, and said L.B.’s manner of dress looked like Buckwheat from “The Little Rascals.”

When you have a strong case like that, one tactic the employer may take is to argue that you were OK with what your boss was doing. In L.B.’s case, the employer presented evidence to support an argument that L.B. actually did not find the doctor’s behavior abusive. L.B., however, was equipped with other proof that did tend to demonstrate that she found the conduct abusive.

The employer may say, “Well, she laughed at the jokes.” However, just like the Black restaurant worker in Detroit, many other employees may laugh at offense jokes because they think such conduct is necessary simply to keep the job they need to survive and provide for their children.

The employer might also point out, “Well, she did not go to HR.” Again, this is not conclusive proof as a lot of workers could reasonably fear that pursuing such a formal action might end with them losing their jobs.

Additionally, an employer may try to shift the focus to all the periods when the workplace was not so hostile. Even if such a period actually existed during your time at a job, that does not diminish the hostility of the other, more problematic periods you experienced at that job. As the Second Circuit Court of Appeals wrote in a ruling in 2009, courts should be cautious not to focus too exclusively on one “stretch of time in which [the victim] fails to allege acts of hostility, and using that time to dilute the strength of his claims based on [other] periods of more intense harassment.”

When the time comes to take on your employer in court, expect them to come well-armed with a skillful legal team and lots of arguments why you should not win your case. Make sure you are ready to take them on, overcome them, and succeed. Count on the diligent New York race discrimination attorneys at Phillips & Associates to be the powerful advocate you need. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation and find out how we can help you.

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