A grouchy boss, an unpleasant work environment, a rude coworker, low pay across the board or in comparison to colleagues, below norm benefits, long hours, unfair promotions, unequal training, demeaning comments, each alone or all together do not necessarily support a claim of unlawful harassment, or more specifically a claim for an illegal hostile work environment. That is because one essential element for such a claim is absent.
A Hostile Work Environment Claim Must Be Based on Discrimination
Even if the conditions or behaviors seem unbearable, it is only an illegal hostile environment if the problematic behavior is based on discrimination. In other words, the route cause for hostile acts or conditions against an employee must be his/her membership in one of the classes protected by federal, state, or local law. Protected classes generally include gender (including pregnancy), race, color, national origin or ethnicity, religion, disability, age, marital status, sexual orientation, genetic information. For example, a boss who routinely ridicules employees regardless of their gender, race, religion, or inclusion in any other protected class may need to be fired, but the ridiculed employees have no legal claim against the boss or the company. In contrast, the boss who routinely ridicules only female employees while befriending male employees is exposing the company to potential claims of gender discrimination, and more particularly, a hostile work environment (a subset of discrimination).
Work Conditions Must Be Severe and Pervasive in Order to State a Hostile Work Environment Claim
A hostile work environment is created when management’s or coworkers’ actions or communications towards an employee or a set of employees make it impossible for the employee(s) to properly perform their job duties. This means that the behavior has altered the terms, conditions, and/or reasonable expectations of a comfortable work environment of employees in a category protected by law. Basically, harassment becomes unlawful where (i-1) enduring the offensive conduct becomes a condition of continued employment, or (ii) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to a level that supports a legal claim.
On the other hand, a coworker who tells sexually explicit jokes and sends around images of nude people is likely guilty of sexual harassment that rises to the level of an unlawful hostile work environment. Similarly, a boss (or co-worker) who verbally berates an employee about his/her age, religion, gender, disability or race may be guilty of creating a hostile work environment.
Even if comments are casual, said with a smile, or played as “jokes,” the boss or co-worker may be creating an illegal hostile work environment. Offensive conduct may include offensive jokes, slurs, epithets or name calling; physical assaults or threats or even unwanted touching or invasion of personal space; intimidation, ridicule or mockery; insults or put-downs; offensive objects or pictures; demeaning comments or looks; propositioning or asking for dates; excluding from work opportunities, trainings, even work related social events; and interference with work performance. Importantly, the victim does not have to have suffered economically (e.g., lost his/her job or have been overlooked for promotion) in order to prove he/she was subjected to an illegal hostile environment.
EMPLOYEES: Reporting Harassment/Hostile Work Environment
In many circumstances a first step is to ask the offending employee to stop the behavior. Of course, in many cases an employee may not be comfortable doing this (especially if the offender is his/her manager), in which case he/she should report concerns to someone in management or Human Resources. The reporting employee should be prepared to share facts — who, what, where and when. Failure to report concerns of discrimination/hostile environment to management or HR will not only mean the problematic behavior is likely to continue, but it also will undermine any legal claim the victim may want to pursue.
Reporting employees should cooperate with management in its investigation, and to the extent possible, avoid discussing his/her claim except as necessary to further the investigation.
EMPLOYERS: Avoiding and Dealing With Discrimination and Hostile Work Environment Claims
Every employer should routinely provide anti-discrimination training (upon hiring and annually thereafter is a “best practice”), with a heavy emphasis on conduct that could give rise to a hostile work environment. And every employer should require every employee to attend the training, with members of management given additional training because (i) their conduct presents a higher risk than the conduct of co-workers, (ii) they need to be able to identify problem behaviors in the workplace and address those problems, and (iii) they need to know how to handle difficult situations if and when they do arise.
Employers should keep records of who attended training and when.
In addition, every employer should review policies and handbooks at least annually to ensure the anti-discrimination, anti-harassment, anti-retaliation policies are comprehensive, easy to understand, provide information on how to report concerns, and include an outline of repercussions for failure to adhere to the company’s and the law’s standards.
When a complaint is brought to management’s attention, management (or HR) must promptly conduct an investigation, keeping as much information as possible confidential. Once the investigation is complete, management should take adequate action to ensure the discrimination/harassment has ceased and will not recur. In some cases this may require terminating the offender; in other cases lighter discipline or training may be sufficient. Document the investigation and the reasoning behind the actions taken.
Employer Liability for Harassment
An employer may be automatically liable for harassment by a member of management if the discrimination/harassment resulted in a negative financial employment action such as termination, failure to promote or hire, or loss of wages. If management’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
The employer may also be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises) if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action.
Be aware that anti-discrimination/harassment laws also prohibit retaliation against someone who (i) filed a charge, (ii) testified or participated in any way in an investigation, proceeding, or lawsuit, or (iii) opposed employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
The lawyers at Faulkner Law Offices, PLLC, have extensive experience in developing Anti-Discrimination/ Harassment/Retaliation policies as well as designing related training for both management and non-management. The Firm also routinely handles employment related disputes arising under discrimination and other relevant laws – whether at the EEOC, in mediation, arbitration, or in court. Please give us a call if we can be of help to you.