Employers can face liability for employee-to-employee or third-party racial harassment

May 2022 employment law letter

Authors:

Danielle Baudhuin Tierney, Axley Attorneys

Although employers may be automatically liable for supervisors or administrative personnel harassing subordinate employees under certain federal laws, they may also be held liable if another employee (even one subordinate to the harassed employee) or a third-party such as a customer or vendor harasses an employee based on their race.

What will courts consider when reviewing claims?

Current federal law prohibits race-based harassment in the workplace under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Claims under both statutes are analyzed using the same framework. Specifically, an employee has to establish four elements under either statute:

The work environment must have been both objectively and subjectively offensive;
The cause of the harassment must be race;
The conduct at issue must have been severe or pervasive; and
There must be a basis for employer liability.

To determine whether the work environment was objectively hostile, courts consider four factors:

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