As a legal practitioner, I can’t count the number of times I’ve had to clarify exactly what constitutes a hostile work environment. When it comes to employment discrimination, there are several laws intended to protect employees.
In addition to city and state laws, which vary in strength and scope, there are many federal laws that offer this protection as well; most notably Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1967, the Age Discrimination in Employment Act, the Genetic Information Non-Discrimination Act and the Equal Pay Act.
Courts have repeatedly opined that these laws are not general civility codes, meaning — no matter how unfortunate — the law does not protect against generally rude or undesirable behavior at work.
You can’t sue your boss just because he’s a jerk. No, the conduct that city, state and federal anti-discrimination laws protect against must be related to a class protected by those statutes.
In other words, the unwelcome conduct must target a protected class, most commonly: sex/gender, race, religion, age, disability, national origin, veteran status, domestic violence victim status and so forth. In some states, sexual orientation is also a protect class.
The term “hostile work environment” carries legal significance that goes beyond workplace unpleasantness or even general bullying. For a hostile work environment to exist, there must be an overarching protected class.
In other words, when an employee alleges they’ve been subjected to a hostile work environment, it must be related to — and a direct result of — a group that is protected by a state or federal statute.
One’s civil rights (and individual employment) must be threatened as part of the offensive conduct.
What isn’t a hostile work environment?
Before discussing the number one sign of a hostile work environment, it helps to discuss conduct that does not constitute a hostile work environment.
Cursing, casual joking, rudeness, petty slights, nitpicking, bossiness and unpleasant behavior, on its own, are not enough to bring a hostile work environment claim.
A supervisor or coworker who routinely antagonizes most or all employees in the workplace, regardless of who they are, will likely not be found to be creating a hostile work environment.
Why? Because the conduct is done indiscriminately, i.e. without regard for a protected class.
In fact, a common defense for employers in employment discrimination cases, particularly those involving managers or supervisors, is that the alleged bad actor did not engage in discrimination, but was simply a “stickler” or a “loose cannon” known for giving everyone a hard time.
An employer who routinely blows their lid, creates a threatening and intimidating work environment, and generally treats their employees poorly will be protected under the law if their conduct is deemed unrelated to a protected class.
This is a hard pill for many employees to swallow, particularly those who find themselves stuck in such volatile workplaces.
So, what constitutes a hostile work environment?
As discussed above, a hostile work environment can only exist where the conduct allegedly targets a specific protected class or classes. For conduct and/or speech to rise to the level of a hostile work environment in these cases, the conduct must be intentional, severe or pervasive, and directly interfere with the employee’s ability to perform his or her job.
For workplace conduct to be deemed severe or pervasive, a court or investigating agency will utilize a “reasonable person” standard, asking whether a reasonable person would consider the alleged conduct to be intimidating, hostile or abusive.
Additionally, one-off occurrences of offensive behavior will generally not rise to the level of a hostile work environment.
The “stray remarks doctrine,” first set forth by the U.S. Supreme Court, and expounded upon by courts since then, has routinely been relied on to dismiss employment discrimination claims.
Exactly what constitutes a stray remark warrants its own discussion, but the typical analysis reviews who made the remark — a decision maker or not; the nexus between the remark and the employment decision at issue; the ambiguity of the remark or whether it could reasonably be deemed discriminatory; and the temporal proximity between the remark and the adverse employment decision.
So, what’s the number one sign of a hostile work environment?
Intimidation – the #1 sign of a hostile work environment.
While the signs of a hostile work environment vary, the number one sign of a hostile work environment, universal in all cases, is intimidation. Intimidation is the one factor unique to all hostile work environments and it takes many forms.
Bad actors may threaten discrimination victims, warning them not to report their conduct.
They may threaten an employee’s bonuses, income or job security.
They may turn other coworkers against the employee, essentially making them a workplace pariah with nowhere to turn.
But the intimidation can also be less explicit.
Even in instances where there is no express prohibition on complaining, victims are frequently intimidated to come forward and report the discrimination they’ve suffered.
They fear retaliation. They fear for their jobs. In extreme cases, they even fear for their lives.
The conduct they’ve endured may be so rampant throughout the workplace, they may worry just how far the harassment will extend and will feel they have nowhere to turn.
In some circumstances, particularly where the workplace is a municipality, government or law enforcement agency, an employee may truly feel they have no options since they’ve seen the dark side of unbridled authority and know firsthand that the checks and balances intended to stop unlawful behavior sometimes fail.
But even beyond those workplaces, intimidation and the fear it creates is a common thread. This is the very essence of employment discrimination.
Employees need their jobs, and the last thing they want to do is risk losing them.
In some situations, employees fear ever being able to work in their field again and worry their victim status or label as a “complainer” will follow them to other workplaces.
The fear to speak up and assert your rights is common, but so too is the threat of reprisal when an employee does come forward.
Though there are laws in place to protect against retaliation for exercising the rights granted by anti-discrimination laws, instances of retaliation are still common, and even where it is not, the fear of retaliation is strong.
Further, asserting your rights requires courage and the ability to navigate the legal system.
Many times, bad actors are betting on the fact that victims may not be up to the challenge of working with a hostile work environment attorney and bringing a legal claim.
If you believe you may be working in a hostile work environment, once all the legal boxes have been checked, trust your instincts.
If you feel too intimidated to speak up and exercise your rights, or if you have come forward to your employer with your concerns and you still feel the looming threat of retaliation or continued harassment, you may in fact be working in a hostile workplace.
A version of this article originally appeared on Fairygodboss. The full version can be viewed here.
Disclaimer: This blog does not provide legal advice and does not create an attorney-client relationship. Always contact an attorney directly if you are in need of legal advice.
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