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Profanity, altercations risk liability.

Byline: ON THE JOB By Dan Grinfas For The Register-Guard

Question: What constitutes a hostile work environment? When I accepted my current job at a family business, I was told things could get `colorful' at times. Colorful means daily screaming matches laced with gross obscenities and confrontations that end with someone shouting, `F--- you!' The employees are constantly referred to as morons, idiots and drug addicts. On one occasion, the family's personal issues resulted in a five-minute tirade of screaming, crying, and throwing the phone and other desk items around the office. I truly felt threatened. What are my options? Would I get unemployment benefits if I were to resign?

Answer: Obviously, the foul language, put-downs and altercations you describe are entirely inappropriate and unprofessional. Moreover, this type of conduct may be illegal under Oregon and federal harassment laws when it is linked to a protected classification and is severe or pervasive enough to create a hostile, intimidating workplace.

If your employer permits this behavior in the workplace, he risks liability, both for the company and for himself as an individual.

In 1986 and again in 1993, the U.S. Supreme Court ruled that an employer may be liable for a `hostile work environment' under Title VII of the Civil Rights Act of 1964 when a workplace is permeated with discriminatory intimidation, ridicule and insult to the point that it alters the conditions of the victim's employment and creates an abusive working environment.

In your example, it is unclear whether the abusive comments are aimed at members of a protected group or sufficiently related to age, race, sex, religion or other protected classifications so as to be illegal. But when the ongoing profanity is sexual in nature or connected with religious words or names, an employee who finds the language offensive and unwelcome might prevail on a claim of sexual harassment or religious discrimination. There can be liability for such comments even when they are not specifically directed at an individual, if the employee regularly overhears the offensive language at work.

In court, your employer might argue that he warned you in advance that the workplace would be `colorful' or that this `comes with the territory' when you agree to work for a family business. Simply warning a job applicant about a harassing environment isn't good enough. Instead, when management is aware of harassing behavior, it must take appropriate corrective action to stop it and prevent it from recurring.

Keep in mind that isolated instances of rudeness, profanity or even off-color jokes do not amount to illegal harassment. Still, it is prudent for employers to enforce a `respectful workplace' policy that prohibits insults, belittling of employees, and verbal or physical assaults, because that behavior can lead to other types of liability. For example, employees often file workers' compensation stress claims when violence or fighting at the office leaves them unable to work. In union environments, employees may file grievances when management condones or fails to address abusive behavior.

If the shouting, fighting and throwing of items you describe put you in fear of bodily harm, you might prevail on a tort action for assault. And if a jury were to decide that your employer's conduct is so outrageous that it `shocks the conscience,' you could prevail on a claim of intentional infliction of emotional distress.

As for unemployment benefits, the Oregon Employment Department determines eligibility on a case-by-case basis. If you were to leave your job, the issue would be whether you voluntarily resigned, in which case you would not receive benefits, or whether your leaving constituted a `constructive discharge' because conditions were so intolerable that you had no reasonable option but to quit. So before leaving, you should pursue all internal options. Document the workplace incidents, complain to the owner, ask for corrective action and keep careful records of your efforts.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. Contact BOLI at (503) 731-4200, or BOLI, 800 N.E. Oregon St. No. 32, Portland, OR 97232.
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Title Annotation:Columns
Publication:The Register-Guard (Eugene, OR)
Article Type:Column
Date:Apr 18, 2004
Words:676
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