Hostile Work Environment

Hostile Work Environment

Discrimination laws recognize that there are many ways to treat someone differently in the workplace. Illegal conduct can occur in during the hiring, firing, and promotion process as well as during the employee’s term of employment. In addition, harassment that creates a hostile work environment is unlawful. Claims involving hostile work environment can be among the most difficult to prove, so good legal advice is needed to help establish a strong case. Our firm has extensive experience advising and advocating for employees who have been harassed due to their race, color, religion, sex, national origin, age, disability, pregnancy, sexual orientation and gender identity.

What Is a Hostile Work Environment?

Hostile work environment harassment occurs when an employee is subject to unwelcome verbal or physical conduct related to his or her membership in a protected class which creates an abusive or hostile work environment. Unlawful conduct includes offensive, humiliating, abusive or threatening remarks and inappropriate physical contact. Hostile work environment claims are typically based on multiple acts that cumulatively alter the employee’s conditions of employment, although it is possible to base a valid claim on a single incident if it is sufficiently severe.

In determining whether the conduct is unlawful, several factors are evaluated. These include (i) the frequency and severity of the conduct, (ii) whether the conduct unreasonably interfered with an employee’s work performance, and (iii) how the conduct affected the employee’s psychological well-being. The alleged misconduct is judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances. The level of severity or pervasiveness of the conduct varies under federal and state law.

Federal Law

Hostile work environment harassment is prohibited under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990.  These laws apply to all federal, state and local government employers; private employers with at least 15 employees (20 employees for age-based harassment); private and public employment agencies; labor organizations; and joint labor-management committees controlling apprenticeship and training.

Under federal law, the harassment must be so severe or pervasive that it adversely impacts the terms and conditions of employment.

New York Law

The New York State Human Rights Law (NYSHRL) also prohibits hostile work environment harassment. This includes conduct that subjects a person to inferior terms, conditions or privileges of employment based on membership in one or more protected classes. The harassment does not have to be severe or pervasive, but it must consist of more than “petty slights or trivial inconveniences.”

State law applies to all employers regardless of the size of the business. Employers must protect employees from harassment by other employees, customers and vendors. In addition, employers may be liable for harassment by employees against independent contractors, vendors, consultants or anyone else who is providing services to the employer.

How Should Employees Respond If They Experience a Hostile Work Environment?

Employees should document all instances of harassment, including noting relevant dates, times, individuals involved, witnesses and details of what occurred. If there is any physical evidence (emails, photos, etc.), it should be preserved. Employees should also report the incidents to the employer in writing and keep a copy. If there are any workplace policies or procedures regarding making a complaint, they should be followed. Any written response by the employer should also be maintained. If the employer gave a verbal response, notes should be taken about what was said and kept as evidence. It is also important for employees to detail how they were affected by the harassment, including gathering pertinent health and job performance information demonstrating that the employee was adversely impacted physically or emotionally.

Federal Agency or Court Action

If the matter cannot be resolved with the employer, employees may file a complaint with the Equal Employment Opportunity Commission (EEOC) under federal law.  Discrimination claims must be first filed with the EEOC before a victim can go to court.  If the EEOC does not resolve the claim within six months, the employee can obtain a “Notice of Right to Sue” from the EEOC and then bring an action in federal or state court within 90 days of the date the notice was received.

New York Agency or Court Action

In New York State, employees can either file a complaint with the New York State Division of Human Rights (NYSDHR) or bring a lawsuit in the New York State Supreme Court. Complaints with the NYSDHR must be filed within one year of the last alleged act of discrimination. A lawsuit must be brought within three years of the last act of discrimination.

New York City has its own law with similar provisions to the state law. The New York City Human Rights Commission’s (NYCHRC) Law Enforcement Bureau (LEB) addresses claims involving city employees. A victim of hostile work environment harassment may file a complaint with the LEB or go straight to the New York State Supreme Court.

What Remedies Are Available for Hostile Work Environment Claims?

Under federal law, victims of discrimination may be entitled to compensatory and punitive damages as well as injunctive relief. Prevailing plaintiffs may be awarded past and future lost wages, benefits and compensation for mental anguish, inconvenience or loss of enjoyment of life. In addition, attorneys’ fees, expert witness fees and court costs may be recovered. Punitive damages are only available against employers that acted intentionally, maliciously or recklessly. Notably, there are limits on the amount of punitive and compensatory damages a prevailing party may recover from an employer. These are based on the size of the employer. However, damage awards can still be quite high, even running into millions of dollars.

In addition, plaintiffs may get injunctive relief. The employer may be ordered to stop any discriminatory practices; take steps to prevent discrimination in the future; and hire, promote or reinstate the employee, if appropriate.

Under New York law, a victim can also receive compensatory damages. However, punitive damages are not available. New York City Human Rights Law does allow punitive damages for discriminatory harassment.


Hostile work environment situations are incredibly stressful on employees.  While victims may want to try to ignore harassment out of fear about their job, it is essential to act promptly in documenting and complaining about harassment.  There are time limits under the law.  In addition, it is easiest to gather evidence at the time of the conduct.  Victims of harassment should also consult a qualified employment attorney.  Good legal advice can have a substantial impact on whether an employee can protect his or her job, establish a strong case and obtain damages for harassment.


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