Dive Brief:

• A plaintiff is not required to prove a "hellish" workplace to establish a hostile work environment, the 7th U.S. Circuit Court of Appeals has ruled (Gates v. Board of Education of the City of Chicago, No. 17-3143 (7th Cir. Feb. 20, 2019)). 
• Employee Fred Gates' direct supervisor called him by a racial slur twice; the supervisor also threatened to write up Gates' "black ass."
• The 7th Circuit, in reversing a grant of summary judgment for the employer, noted that a supervisor's use of racially toxic language in the workplace is much more serious than a co-worker's. Additionally, while the district court found the harassment too infrequent (three slurs over a six-month period during a four-year employment) to be considered "pervasive," the 7th Circuit said the supervisor's conduct was both severe and humiliating. "A reasonable jury could also find that it did interfere with Gates's work performance, not least because it led him to take a leave from work to seek medical treatment," the court said.

Dive Insight:

The U.S. Equal Employment Opportunity Commission (EEOC) clearly defines the unlawful misconduct that can create a hostile work environment. "Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality," it said in guidance. "To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance."

Prevention, says the EEOC, is the "best tool to eliminate harassment in the workplace." Employers are advised to:

• Clearly communicate to employees that unwelcome harassing conduct will not be tolerated;
• Establish an effective complaint or grievance process;
• Provide anti-harassment training to managers and employees;
• Take immediate and appropriate action when an employee complains;
• Create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed; and
• Encourage employees to report harassment to management at an early stage to prevent its escalation.

From both a legal and a management perspective, harassment prevention is always preferable to remediation, even if the employer's response is both swift and appropriate. "[I]t's a critical time for employers to take a radically different approach, moving away from the compliance focus to a prevention focus," EverFi Senior Director of Harassment Prevention Elizabeth Owens Bille previously told HR Dive in an interview.

But because it's not always possible to prevent 100% of workplace harassment before it starts, a prompt and thorough response protocol is essential, too. Experts have advised HR to get comfortable with the idea of conducting internal investigations when appropriate, even if the concerns are based on observations rather than a direct complaint.