What Constitutes a Hostile Work Environment?

Carolyn Buppert, NP, JD

Disclosures

December 20, 2011

Question

What constitutes a hostile work environment and how does one prove it?

Response from Carolyn Buppert, NP, JD
Attorney, Law Office of Carolyn Buppert, PC, Bethesda, Maryland

A work environment is hostile whenever someone feels that it is. However, for an individual to enlist the legal system to get relief, offensive conduct in the workplace must:

  • Be severe, such that a "reasonable person would agree that it is severe";

  • Be related to a protected class of individuals;

  • Be pervasive; and

  • Have the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile, or offensive working environment.

According to the Equal Employment Opportunity Commission (EEOC), the agency responsible for taking and investigating complaints, protected classes include men and women on the basis of sex; any group that shares a common race, religion, color, or national origin; people over 40 years of age; and people with physical or mental handicaps.[1]

Therefore, a boss who yells at everyone may be offensive and may create a hostile work environment, but no laws exist that can help employees make him or her stop, unless the individual directs the offensiveness at an individual in a protected class. The EEOC's stand is that federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not "extremely serious."[2]

Here is how one judge described a hostile work environment in a situation where an employee sued because his supervisor repeatedly referred to his religious background in a derogatory manner:

  • An objectively hostile environment is one that a reasonable person would find hostile or abusive.

  • In determining whether a plaintiff has met this standard, courts must consider all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating or was a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance.

  • We can determine whether an environment is hostile or abusive only by looking at all the circumstances, because no single factor is required.

  • With respect to the frequency of the harassment, there is no magic number of incidents that gives rise to a cause of action. Repeated incidents of verbal harassment that continue despite the employee's objections are indicative of a hostile environment.

The judge in that case then concluded that the following constituted legally actionable harassment:

  • The supervisor made 6 rather severe instances of harassment during 4 months.

  • The supervisor made 3 remarks (approximately 1 remark each month) in which she specifically referred to the plaintiff by his race and religion in an intimidating manner. Through these remarks, she emphatically expressed to [the plaintiff] her hostility to his race and religion, and that she was motivated by that hostility to impede his career ("keep his ass down").

  • The supervisor took steps to hinder his career (by prohibiting him from teaching students) and to drive him from the job site ("once and for all that [he] needed to leave [the site] and get out of her hair").

  • Despite his repeated objections to her harassment, she made further discriminatory remarks to him and expressed her approval of his failing health and diminished professional responsibilities.

  • She used her supervisory position to bully, intimidate, and insult him because of his race and religion, which is the type of "extreme" harassment that is the hallmark of a hostile environment claim.

  • Her remarks were not merely inappropriate, insulting, demeaning, or annoying, and there is no indication that she was teasing him or that she simply lacked a proper sensitivity to his race and religion.[2]

According to the EEOC, "you will have to be able to prove that you were subjected to racist or anti-ethnic, anti-religion, anti-age type conduct, that the conduct was unwelcomed by you, that the conduct was sufficiently severe or commonplace at your job that a reasonable person in your position would find your work environment to be hostile or abusive, that your employer knew or should have known about the conduct, and yet your employer did not take reasonable steps to correct the situation or prevent the harassment from recurring."

Illinois Legal Aid recommends the following steps to individuals who believe they are experiencing offensive behavior at work:

"First, you must find out if your employer has a written harassment policy. If they do, you must follow the steps it lays out for you for complaining about your harasser. This is a necessary step for you to take, because if you do not use the policy, your employer will not be responsible to you for your harasser's actions. While you may feel afraid to report your harasser, or think it will do no good to report your harasser, you still must do so; otherwise your legal claim against your employer will be severely and negatively affected.

"Even if there is no written policy, you must still complain to management about the harassment, and you should document the date of your complaint, who you complained to, and what you reported. Make sure you tell management the whole story, even if you find it upsetting. Again, this will be critical to going forward in any legal claim against your employer for harassment.

If you are the victim of harassment, you must file a charge of discrimination with a governmental agency that investigates employment discrimination within 180 days of the negative employment action against you. In Illinois, if you are a state or local governmental employee, you should go to the United States Equal Employment Opportunity Commission (EEOC). You must go to this agency first to 'exhaust your administrative remedies' before you can bring a court lawsuit on a harassment claim. After you file your charge, the EEOC will do some investigation of your claim, and issue a finding of whether there is sufficient evidence to believe that harassment occurred in your situation."[3]

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