What is "Pervasive Conduct"?
Pervasiveness refers to the extent, frequency, continuousness, and length of presence of the misconduct in question, which must be of a sufficiently high level to permit a finding that the conduct was pervasive so as to change the conditions of employment and create a hostile or abusive work environment for employees because of the victim's sex. To be severe enough to trigger liability, the conduct must be sufficiently egregious to make the employee's work environment hostile.
Factors that Are Considered in Determining Pervasiveness:
- Frequency of Harassing Conduct: For conduct to be sufficiently pervasive to amount to discriminatory change in the terms and conditions of employment, the conduct must be sufficiently continuous and concerted. To be sufficiently concerted, the misconduct must be consistent without too much time lapsing between each incident. For example, the court found that there was no concerted pattern of harassment found to support a finding of sexual discrimination where four incidents of misconduct occurred over a four-year period. Generally, a single incident is not enough unless it is extremely serious.
- Corrective Action by Employer: Whether or not the employer takes immediate corrective action affects the determination of pervasiveness and the overall finding of a hostile work environment. The employer's failure to immediately take action in an attempt to lessen the harmful effect of the misconduct or to prevent the conduct in the future increases the pervasiveness of the conduct. Likewise, when the employer acts to reduce the harasser's ability to commit the misconduct in the presence of the victim, this reduces the pervasiveness of the misconduct. For example, when an employer moves the employee that committed the misconduct to another department to prevent further contact between him or her and the victim reduces the misconduct's pervasiveness.