WHAT IS A HOSTILE WORK ENVIRONMENT?

I frequently get calls from workers who think they are dealing with a hostile work environment, but they’re not.

A hostile work environment is more than just hostile co-workers or managers. A hostile work environment is a legal term with a specific legal definition. So, if a hostile work environment is not just hostility at work then what is it. Well, a hostile work environment is a form of discrimination and with any form of discrimination the conduct must be based on your protected characteristics like your sex gender, race, national origin, or disability status. Just to name a few. but there’s more to it than just that so let’s get into that very quickly. Nothing in this article is legal advice.

Remember what I said earlier? A hostile work environment is a form of discrimination. So, to understand the law against a hostile work environment we have to look at the law against discrimination and the law against discrimination can be found in Title VII of the Civil Rights Act of 1964. Most states have their own laws against discrimination too which are usually broader than Title VII, but those laws usually mirror Title VII closely. So today I’ll just be looking at title VII. See California’s anti-discrimination law, Gov. Code, § 12940.

Title VII says the following:

Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

42 U.S. Code § 2000e–2 – Unlawful employment practices.

The important takeaway from that law is that it prohibits discrimination with respect to an employee’s conditions of employment because of the employee’s protected characteristics. The most obvious forms of discrimination happen when a company takes some adverse employment action against you because of your protected characteristics like an employer firing you because of your gender or race. However, the employer doesn’t need to fire you to break the law. Changing your conditions of employment because of your protected characteristics can also qualify as discrimination and that’s what a hostile work environment is. It is when you endure abuses at work based on your protected characteristics and the abuses are so severe or pervasive that they change the conditions of your employment. That’s what a hostile work environment is.

To be considered illegal, the hostile work environment must meet certain criteria under the law. Let’s go over those criteria. What are those criteria for a hostile work environment?

There must be language or conduct concerning your protected characteristics or that only occur because of your protected characteristics.
The language or conduct must be unwelcomed.
The language or conduct must be so severe or pervasive that it alters the conditions of your employment. Remember back to Title VII? It has to alter the conditions of your employment. Let’s break down each of those elements.

First, the language or conduct must be concerning on the basis of your protected characteristics. When the conduct or comments are explicitly linked to your protected characteristics like saying something racist or ageist or sexist. However, the harasser doesn’t need to explicitly say anything racist or sexist if the harasser is targeting you because of your protected characteristics and not targeting anyone else outside of your group. The conduct may still be attributable to your protected characteristics.

Second, the language or conduct must be unwelcomed. That means that you personally found the words of conduct to be offensive and that anyone in your position would have also found it offensive and it also means that you did not solicit or incite the behavior. In other words, you did not start it. The best way for you to show that you found the behavior offensive and did not solicit or incite the behavior is by telling the harasser that you found it offensive and reporting it to HR. Putting your complaint in writing is always best because it creates a record which we can use as evidence later. Your memory of the events also counts as evidence.

Finally, the language or conduct must be so severe or pervasive that it alters the conditions of your employment. Remember back to Title VII? It must alter the conditions of your employment. Severe means that it was extreme like threatening, yelling, or touching. Pervasive means that it happened persistently over a period of time like little jabs over and over again. Altering your conditions of employment means that the harassment made it difficult for you to do your job. Maybe you had to change where you worked or how you got to work, or you had to take your lunch earlier or use different entrances to get to your desk. Now that you know what a hostile work environment looks like the next question is your employer’s responsibility. Your employer must be responsible for you to bring a lawsuit. Employers are responsible for a hostile work environment under two scenarios: First, if an owner/manager or corporate officer participated in the behavior the employer is then automatically responsible, but what if it was a co-worker or non-managerial staff? Under those circumstances the employer is only liable if it knew or should have known about the harassment and failed to take prompt and adequate corrective action. An employer knows or should know about a hostile work environment. If you report it to HR or if it’s so pervasive through other circumstances that the employer just should know. When an employer fails to take any corrective action like investigating your complaint or separating you from your harasser or disciplining the harasser, the employer is then liable for the hostile work environment.

What do you get if you win your case of a hostile work environment? Well victims of a hostile work environment can collect their lost wages, emotional distress, attorney’s fees, and sometimes punitive damages to punish the employer, if you were fired or quit because the hostile work environment was so severe. You can collect the amount of salary you would have gotten had you remained in your position. You can also recover compensation for the emotional harm you endured like humiliation embarrassment, fear, anxiety, loss of enjoyment in life.

Now you know what a hostile work environment is. It happens when a worker is subjected to language or conduct about their protected characteristics that the worker did not welcome and that was so severe or pervasive as to alter their conditions of employment and your employer is responsible for the hostile work environment if a manager or supervisor participated in the behavior or the company knew or should have known and failed to take prompt and adequate corrective action.