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A supervisor asks an Asian employee to help calculate a lunch delivery tip because he should be “good at math.” A manager assumes that a Hispanic worker speaks Spanish and asks her to translate something. A male employee laughs when he overhears two female co-workers discuss football.
These aren’t examples of blatant discrimination based on race, sex, or other characteristics protected by civil rights laws—and may even misguidedly be intended as compliments. But they could land as subtle “microaggressions” stemming from unconscious biases and stereotypes. If they occur frequently enough, microaggressions could lead workers to file harassment lawsuits against their employers.
“It’s possible depending on the nature and the extent of the microaggressions,” said Nathaniel M. Glasser, a management attorney with Epstein Becker Green in Washington. Glasser co-leads the firm’s Health Employment and Labor strategic industry group. “I think what employers first ought to look to is whether the microaggressions are causing a hostile work environment,” he told Bloomberg BNA.
Of course, whether employees would actually win such lawsuits is another story. Before workers can initiate private litigation, they must first file discrimination charges with the Equal Employment Opportunity Commission, which enforces a number of federal anti-bias laws. The commission investigates the allegations and either sues a company on behalf of the worker or issues a right-to-sue letter to the employee.
From there, a court would consider the employee’s evidence and decide whether it meets the definition of legal harassment, as well as taking into account any employer defenses.
“These determinations are intensely fact-specific,” said Carol Miaskoff, EEOC’s acting associate legal counsel. “You look at each piece of conduct and the pattern of conduct.”
Combating harassment remains a priority for the commission, which last week launched a new employer training program aimed at creating respectful workplaces. Agency commissioners also have expressed interest in partnering with the National Labor Relations Board on joint anti-harassment guidance.
The word “microaggression” isn’t a legal term. So what is it exactly?
“In today’s lexicon, a microaggression is used to describe a slight, whether intentional or unintentional, against any socially marginalized group or protected group under the law,” Glasser said.
More often than not, microaggressions can reflect unconscious biases because they play into stereotypes, whether positive or negative. In many cases, a speaker may not intend the comments or actions to be offensive. For example, imagine a white executive who “compliments” a non-white colleague for “speaking English well.”
“The typical defenses are: ‘I was joking,’ or ‘I didn’t mean anything by it,’” said Edward Yost, employee relations and development manager at the Society for Human Resource Management in Alexandria, Va. “Intention is irrelevant.”
“It’s how it’s received by the recipient,” he said. “That’s what makes the difference. That’s what will be actionable.”
Workplace harassment is prohibited under federal and state law. It’s generally defined as conduct that’s severe or pervasive enough that an objectively reasonable person would consider the work environment to be hostile, intimidating, or abusive.
The attorneys said they aren’t aware of any harassment lawsuits that have been premised entirely on microaggression claims. But facts that could be interpreted as microaggressions have been cited in employment cases alleging discriminatory terminations, demotions, or other discrete employer actions.
So could microaggressions ever be used to establish a harassment claim? It depends on the facts of the case.
“It’s not a black and white issue,” said Ernie Haffner, a senior attorney-adviser in the EEOC’s Office of Legal Counsel.
One subtle comment alone might not be “severe” enough under the law. Severe harassment usually takes the form of egregious epithets or unwanted physical contact.
Additionally, isolated comments here and there might not be seen as “pervasive” enough either.
However, if microaggressions emanate from someone in a position of authority, occur routinely, and affect an employee’s ability to work, that could be pervasive enough for a court, Glasser said.
Or “at the very least,” it could create “a colorable claim to allow it to proceed beyond a motion to dismiss or the summary judgment phase,” he said.
But to reach that level, there would have to be more than isolated, sporadic comments, even if offensive, particularly because courts have repeatedly held that Title VII doesn’t operate as a “general civility code.” Of course, state and local laws may have a lower standard, Glasser said.
Even if microaggressions can’t form the basis of a legal harassment claim, employers should keep them out of the workplace, the attorneys said.
Microaggressions can lower employee morale and hurt productivity and retention, they said.
“They can chip away at somebody’s confidence and make them feel less valued in the workplace,” Yost said. “A wise employer will take proactive steps by providing training to employees to not only address more obvious discrimination and harassment, but to take it a step further and address those unconscious biases.”
They also should have mechanisms in place for employees to notify supervisors or other company representatives about any alleged harassment, including microaggressions, the attorneys said. Companies also must take reasonable steps to investigate and address problems that may be creating a hostile work environment, they said. Taking those steps also helps employers establish affirmative defenses to harassment claims.
“Employers should treat complaints about microaggressions as seriously as they would any other complaint of discrimination or harassment,” Glasser said. “Failure to contain that behavior might lead to litigation, but it also might lead to an unhappy workforce with more attrition.”
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