Updated: January 25, 2021
Employers and employees need to be aware of laws regulating workplace conduct, including hostile work environment and hostile workplace laws. Hostile work environments can arise from overt actions, but also from statements or behavior. Understanding workplace environment claims and risks requires considering both the law and the facts in a given situation. Employers and employees should consider speaking to experienced counsel to better understand the risks and responsibilities concerning work environments.
Hostile work environment claims are types of workplace discrimination claims that can arise under state or federal law. Under federal law, these claims typically arise under Title VII of the Civil Rights Act of 1964, which protects employees from workplace discrimination on the basis of “race, color, religion, sex and national origin.” These statutory categories encompass many forms of discrimination, including based on race, gender or sexual orientation, ancestry, national origin, color, religion, pregnancy status, age, or disability status.
Workplace discrimination may or may not create a “hostile” work environment. The line between discrimination and hostile work environment is fact-sensitive and also depends on the state or federal laws governing the claim. Generally speaking, isolated incidents of discriminatory conduct are not enough to prove a hostile work environment. Rather, an employee must show that they were required to endure the discriminatory conduct to keep their employment OR that the discriminatory or harassing conduct was “severe” or “pervasive.”
Determining when conduct is “severe” requires looking at many factors, including frequency, severity, physical threat level, humiliation, unreasonable interference with work performance, effect on an employee’s psychological well-being. Conduct is considered pervasive when it is continuous enough to be a lasting feature of the workplace. This means that a one-off instance will likely not result in a successful claim.
Discriminatory conduct can range from inappropriate jokes, ridicule, use of sexual dialogue, derogatory insults and slurs, to unwanted touching, physical assaults and threats. When such conduct becomes a condition of employment or becomes severe and/or pervasive, it may lead to a hostile work environment claim.
Generally, to make a hostile work environment claim, an employee must show that they are a member of a protected class (whether due to race, gender, color, national origin, disability, etc.). Separately, the employee must show that the discrimination arose due to or on account of that employee’s membership in the class. And finally, the employee must show that the hostile work environment can be imputed to the employer. In other words, the employee must show that the employer caused or controlled the environment.
For example, the employee is unlikely to be liable to an employee in a situation in which a co-worker alleges harassment or discrimination by another co-worker, unless the employee can show that the employer negligently supervised the co-worker or contributed in some way to the harassment. By contrast, if a supervisor were to engage in harassment or discrimination, the employer may be strictly liable (that is regardless of intention or fault).
These claims are typically investigated or adjudicated by the Equal Employment Opportunity Commission (EEOC), the state and federal courts, or in some instances by other agencies (for example, the Federal Trade Commission). Employees bringing hostile work environment claims need to establish that they are in a “protected class.”
Discrimination laws typically use a “reasonableness” standard. This means that a reasonable person would find the behavior to be abusive or hostile. This also means that where an employee has a particular sensitivity that increases their subjective harm, that alone may be insufficient to make a claim. Importantly, the intention behind the conduct is not relevant in litigating a hostile work environment claim. Thus, repeated behaviors that are seemingly casual or statements that are said with a smile can support a hostile work environment claim. Offensive behavior that is accidental, meant as a joke, or intended as constructive criticism may also give rise to a hostile work environment claim. This is especially true where the potential offender is made aware of the offense or is asked to stop and continues the disparagement.
Employees and employers should be aware that even if facts do not support a hostile work environment claim, that does not mean that there is no claim under law. There may be other grounds for redress, like intentional infliction of emotional distress.
An employer is responsible for overseeing managers and employees and may face liability for a hostile work environment. Employers who lack a human resources department may be at higher risk of workplace environment claims.
Owners, managers and employers should be proactive to investigate potential harassment or offensive behavior. Employers should also understand that offensive conduct by a supervisor or manager puts them at greater risk and should take particular care to guard against supervisory misconduct. Employers should also implement policies and procedures in advance to educate their managers and employees about workplace conduct and foster a non-discriminatory workplace environment.
An employee who thinks that he or she may be suffering discriminatory or harassing conduct should immediately put the offending party on notice and document all instances of harassment. Contemporaneous documentation will likely greater evidentiary weight than after the fact recollections. Employees should also weigh their options carefully in deciding how to constructively engage in dialogue with their co-workers and supervisors to document and hopefully stop discriminatory and harassing conduct. Employees may also consider submitting a formal complaint a representative of the employer’s human resources department.
Hostile work environment claims present many risks and pitfalls to unwary employers and employees. Whether you think you may have a hostile work environment claim or you are an employer or business owner trying to protect your business, you should consult with counsel about your rights and responsibilities concerning workplace discrimination and hostile work environments.