Routine Denial of the Human Right to Work Safely

Boston columnist Joan Vennochi has given us insight into some of the cases that are being dismissed when women bring claims of a hostile work environment. In 2012, a TSA employee in Boston filed suit against Homeland Security.  Her boss wielded a baseball bat. The boss routinely engaged a swinging stance, raising the bat when he spoke to the Plaintiff.  The same boss changed the female employee's work assignments, citing concerns about the employee's family- friendly work hours.   Witnesses testified that the switch was related to the boss' attitude toward women.  The judge hearing the case dismissed it finding that while the atmosphere was likely uncomfortable, it did not rise to the level of severe or pervasive discrimination. The judge wrote, that the supervisor did not threaten the employee with the bat.  The statement reflects nothing less than a misunderstanding by the court on how threats happen and the psychological damage that threats can have.  

 In another case reported by Vennochi, a supervisor called the Plaintiff a "whore, stupid bitch and hooker." That case was dismissed because the conduct, according to the court, was "general vulgarity" not speech regulated by law.

Former federal District Judge Nancy Gertner said that plaintiffs alleging a racially hostile environment do not have better results than the women who claim a hostile work environment based on sex..  "Gertner cites Johnson v. Freese, a Georgia case in which the white owners of a nightclub directed the N-word toward their African-American employees. The boss asked someone wearing a shirt with a monkey on it, “Are the Obama shirts in?” Black workers suffered other indignities as well. Yet in granting summary judgment, the judge said that while the white owners were “racist, bigoted and/or offensive people” the judge found that none of the incidents went beyond the “ordinary tribulations of the work place.”  If that is the case then we as a nation tolerate a high level of abusive behavior as customary.

When President Obama announced that empathy would be an important quality in a Supreme Court Justice, some found empathy to be inapplicable to the position.  Apparently not.

The influence of  the human rights principle of maintaining individual dignity has not made its way to employment law cases.   We cannot expect human behavior to be perfect.  Most of us will have days when our behavior could have been better.  But some instances of racist and sexist behavior are so disturbing that a logical conclusion is that the speaker has acted out of a place of deep prejudice.  In other cases, a pattern of disrespectful behavior is engaged.  Neither a serious incident or a pattern of discriminatory action or speech should be tolerated.  If being called a "stupid bitch" is insufficient to trigger a hostile work environment finding,  we need to change the standard of proof to match human rights principles.