Employment Law

What Is a Hostile Work Environment?

Workplace rights have evolved rapidly over the last few years. People who suffered through sexual harassment, bullying, and other destructive behaviors have bonded together to try to put a stop to behaviors that have no place in the work environment. These whistleblowers summoned tremendous courage and strength to stand up for themselves.

However, not every unpleasant working situation is a hostile work environment. Hostility in the workplace, such as arguing with co-workers, or your boss does not meet the legal definition of a hostile work environment. Additionally, having an unfair workload, denial of certain workplace privileges, or being passed over for a promotion do not equate to a hostile work environment in the legal sense. These problems might make you reconsider your job and whether you should look for a job someplace else. These conditions make you quit before you even find a new job. However, the question comes down to whether you have a legal cause of action for a hostile work environment.

What is a Hostile Work Environment?

The confusion between an unpleasant and toxic work environment and a legally hostile work environment has a lot to do with the word “hostile.” “Hostile” can mean you are sick of your boss yelling at you, or you think your co-workers unfairly single you out for undesirable work. You are right; however, hostility is also a term of art in the law.

If you want to sue your employer because of a hostile or offensive work environment, you have to prove two things. The first thing you must prove is that the abuse you endure at work rises to the level of a hostile work atmosphere in the legal sense. The second thing you must prove is that the unwelcome conduct is because of your protected status.

What Conduct is Considered Hostile?

Workplace hostility may be actionable if you can prove that you suffered unwelcome, or offensive conduct that is severe and pervasive. Also, you must prove that the terms and conditions of your job changed because of the severity and pervasiveness of the unwelcome conduct.

This is a test with both a subjective and an objective component. You have to prove that the conduct offended you and would have offended the reasonable person in your circumstances. This requirement helps employers avoid legal liability. Employers often argue that the claimed behavior is not objectively hostile or abusive. In other words, the employee cannot win their case for having thin skin.

The federal Department of Labor (DOL defined what hostile conduct that rises to the level or harassment means. Each case is different. Thus the courts do not use a minimum standard of conduct to determine what is hostile. Instead, they analyze each case individually while looking for the presence of certain factors. Those factors include:

• How often the unwelcome conduct occurred;
• The severity of the unwelcome conduct;
• Was the conduct simply offensive, or was there a physical threat;
• Whether the alleged victim suffered humiliation because of the conduct;
• Whether the conduct interfered with the victim’s work product and performance, including the alleged victim’s promotional record, disciplinary history, and career track;
• The effect the conduct had on the alleged victim’s well-being; and
• Whether the person accused of harassment held a supervisory role over the alleged victim.

Judges apply these factors to hostile work environment claims to determine whether the misconduct is simply teasing and ordinary workplace difficulties or something more sinister.

You should note that anyone could be a source of unwelcome conduct that creates a hostile work environment. Supervisors and bosses top the list, as mentioned above. However, other people can create a hostile work environment. Those people include co-workers, customers, contractors, sub-contractors, and any other person who interacts with you while you are working.

Membership in a Protected Class or Characteristic

You must prove that the perpetrators of the unwelcome conduct you suffered treated you differently because of a protected characteristic or your membership in a protected class.

According to the U.S. Equal Employment Opportunity Commission (EEOC), a hostile work environment means harassment based on:

• Race,
• Color,
• National origin,
• Creed,
• Pregnancy,
• Sex,
• Sexual orientation,
• Sexual identity,
• Age (starting at 40),
• Disability, and  
• Genetic information, which includes family medical history.

Thus, a hostile work environment, in the legal sense, is just one type of discrimination.

Discrimination in the workplace is unlawful. Congress passed several federal laws to prevent employment discrimination. Examples of that legislation include Title VII of the Civil Rights Act of 1964,  the Americans with Disabilities Act (ADA),   and the Age Discrimination in Employment Act of 1967 (ADEA).

What Behaviors Create a Hostile or Offensive Work Environment?

Any behavior can potentially create a hostile or offensive work environment. However, the DOL   designated the following behaviors that can contribute to a hostile work environment. Those behaviors include:

• Talking about sexual activity and experiences;
• Telling jokes that refer to race, sex, disability, or any other protected characteristic;
• Touching beyond which is necessary;
• Commenting on a person’s physical appearance, whether positively or negatively;
• Showing racially insensitive or sexually suggestive photographs;
• Using racial slurs or insults based on protected characteristics;
• Crude language or making indecent gestures;
• Hostile physical confrontations; and
• Sabotaging the protected person’s work.

This list is not exhaustive. As discussed above, courts decide each claim on a case-by-case basis.

What Should You Do If You Are the Victim of a Hostile Work Environment?

The first step is to put your employer on notice that you are suffering harassment in the workplace. You can try to correct the situation by communicating with the person or persons causing the hostile work environment. You should communicate your feelings professionally, but firmly as well. More often than not, your co-worker will be embarrassed and apologize for offending you.

If that does not work, then you must bring the issue to your supervisor’s attention. If your supervisor is the person violating your rights, then you should talk to your Human Resources Department as well as your supervisor’s boss. Your company’s management will not take to this kindly, in most instances, and intervene on your behalf. The management of a company usually tries to avoid costly and potentially embarrassing litigation.

You can also ask co-workers you trust if they have observed the behavior you find offensive. They might find the behavior offensive too and offer to be your witness or join you in your pursuit of rectifying this maltreatment.

You should remain professional at all times. That does not mean you cannot get angry or emotional. It does mean that you should not retaliate or become derelict in your work. If you have exhausted all internal remedies and the behavior has not ceased, then it might be time for you to find other work. Again, take the high road. Continue performing your job competently, thoroughly, and timely. Make an interview with your Human Resources manager and inform them why you are quitting and when. Give two weeks’ notice if you can.

You must watch for retaliation. Your employer cannot retaliate against you in any way for protecting your rights. Retaliation could lead to significant legal liability on behalf of your employer. Potential liability may not necessarily prevent this from occurring. You should document any adverse consequences that you suffer after you disclose to your employer that you are a victim of a hostile work environment.

Despite your desire to do so otherwise, do not destroy anything, take company property, or make any derogatory comments when you finally leave. Doing so could jeopardize your professional future or your legal rights.

When Should You Contact a Legal Professional for Help?

Contacting a reputable discrimination lawyer is a promising idea, especially if you feel you need to quit your job due to a hostile work environment. A qualified workplace discrimination lawyer can guide you through the process and counsel you on the appropriate steps to take. Having someone on your side will help you navigate this emotional process more smoothly. Additionally, an attorney will protect your rights to file a lawsuit if you want to pursue damages.

Employment discrimination claims are difficult to prove. You must preserve as much evidence as possible. You and your lawyer can devise a strategy that helps you collect and preserve evidence without violating the law or your employer’s rights.

Having an experienced employment discrimination attorney will help you determine the best venue for your case. Unless you are a federal employee, you will have the choice to file your discrimination claim with your state’s anti-discrimination agency or whether you should file your claim with the EEOC. One thing is certain: you must exhaust your administrative rights before you file a case in court.