Employees should be free to come to work without an overwhelming sense of dread due to situations or workplace politics that are unreasonably cruel. Though nearly everyone has experienced an overly-critical supervisor or dealt with an embarrassing situation at work, that does not mean that there was a violation of the law.
What a Hostile Work Environment Is Not
A hostile work environment is not just an unpleasant office. Though treating staff poorly (subordinates or colleagues) is not conducive to a productive workplace, and can only contribute to decreased morale, performance, and turnover, it is not illegal. Feeling overworked and underpaid is sometimes just a part of working.
A single incident used not to be considered as hostile, due to the one-time nature of the offense not representing the environment as a whole. However, higher courts are deciding that a severe enough single violation can sometimes now be considered due to the violation creating hostility in the workplace. One example of this is using a racial slur.
What Constitutes a Hostile Work Environment
It is difficult to give an inclusive description as to what a hostile work environment means since there is no exact verbiage to capture the broad scope of actions that could be hostile. The reason for this is that situations are often subjective and fact-specific. What may be considered hostile in one workplace could be regarded as mild in another. Also, there may not be solid proof to substantiate the claim. Most instances of hostility are verbal, and there is often a conscious effort by the offender to ensure that there is no trail such as email, voicemail, or texts.
To qualify, behavior or actions occurring must be:
- Discriminatory. The Civil Rights Act of 1964 prohibits actions should they discriminate against another based on race, color, gender, religion, or national origin. State or local jurisdictions, or company policies, may include additional protections. Select classes of employers may be exempt.
- Pervasive. Usually, cases must have multiple incidents, or habitual behavior, to be considered hostile. As previously mentioned, severity can now override longevity and frequency if the single event is deemed harmful enough.
- Unwelcome. This requirement creates another ambiguity in the law. What is deemed “offensive” is unique to everyone, and some people are not bothered by certain lesser-professional behaviors, such as profanity. Someone known for using profanity, however, will have little claim that others using similar language are creating a hostile environment.
- Severe and Disruptive. The actions creating the feelings of hostility need to be reasonably severe enough to warrant getting the courts involved. These can include communication or actions that keep the employee from being able to perform his or her job, or drive the employee to avoid the workplace (call in sick), or develop medical issues due to the stress.
A coworker who is just generally uncouth, obnoxious, or otherwise unpleasant can create a tense work environment, but not necessarily a hostile one. An employee who tells graphic sex jokes, however, may be guilty of creating a hostile work environment AND sexual harassment.
How To Handle a Potentially Hostile Work Environment
By the time it gets to requesting legal action, the courts will expect that you have exercised all available internal options. The usual courses of action that they like to see include:
- First, directly asking the offender to stop. Many times, when being made aware that their behavior is unwanted, the undesired behavior stops.
- If this does not work or is not an option, it is expected that you turn to a supervisor in your chain of command.
- If management takes no action or is a part of the offending party, Human Resources is the next expected step. Human Resources can usually help with mediating, holding difficult conversations, or implementing behavior management.
- Document and log any attempts to communicate the problems you’re experiencing. Even if people agree to remedy issues in person, send a follow-up email confirming the conversation.
It is up to the employee to prove that the claimed events actually happened. If an employer claims that they were never made aware of the incidents, and the employee can not contradict this, the claim may be dismissed. When there is proof, employers are often eager to resolve the issue with no outside involvement.
If you feel that you may be in a hostile work environment, our experienced counsel at Swartz Swidler, LLC, can guide you through the process of filing a claim with the EEOC and advise you on your legal recourse. Fill out the contact form or call us at 856-685-7420 today.
