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In today’s Fast Legal Answers series, I’ll be defining and explaining what a “hostile work environment” is. I hear this phrase thrown around so much that I think many people don’t actually know what a hostile work environment actually is. Is it an unpleasant work environment? Is it an unbearable one? How does it relate to discrimination and protected classes?
After reading this article you will know the legal definition of a hostile work environment, and should have a better idea of what is, and what is not, legally recognized as a hostile work environment.
Hostile work environment and harassment
A hostile work environment is really just a specific form of harassment. The EEOC defines harassment as:
unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Essentially, harassment occurs when a person suffers consistent and unwanted, and objectively offensive, conduct at work as a result of their membership in a protected class.
Elements of a hostile work environment claim
To establish a claim of hostile environment harassment, a complainant (employee) must prove all of the following elements:
- They belong to a statutorily protected class;
- They were subjected to harassment in the form of unwelcome verbal or physical conduct involving that protected class;
- The harassment complained of was based on his or her statutorily protected class;
- The harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and
- There is a basis for imputing liability to the employer (it is fair to find the employer liable, they were on notice of the conduct and did nothing, etc.)
Failure to meet or prove all of the above elements will likely result in you losing your case.
Hostile work environment: Legal definition vs. common (mis)conception
I think the common conception of a hostile work environment is a work environment that is unpleasant, generally sucks, or that makes you unhappy. However, as you can see above not only must the environment be intimidating, hostile, and/or offensive, the hostility you are enduring must also be a result of your membership in a protected class. This means that if your boss is a jerk to everyone including you, you won’t have a hostile work environment claim–the harassment must be based on your membership in legally recognized protected class. To illustrate, your boss not liking you because you are fans of rival sports teams, is not actionable discrimination. This is because what team you are a fan of is not a protected class. However, if your boss treated you differently because of the color of your skin, and only used your different team alliances as a pretext, that would be considered discrimination.
How bad does it have to be to be a hostile or offensive work environment?
In determining when a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance, Harris. But the working environment must be objectively hostile. Harris, 510 U.S. at 22. This means that a reasonable person in your shoes would find the work environment hostile or abusive too. So, if your hostile work environment claim rests on the fact that your boss doesn’t say please and thank you whenever they talk to you–your claims will likely fail. A simple way to evaluate whether your claim passes this “reasonable person” test is to explain your working situation to friends or acquaintances, if they strongly agree that your work environment is hostile or unbearable then its likely it is objectively hostile.
Obviously, each case is different, and the EEOC recognizes that a “hostile work environment harassment takes a variety of forms, many factors may affect this determination, including: whether the conduct was verbal or physical, or both; how frequently it was repeated; whether the conduct was hostile and patently offensive; whether others joined in perpetrating the harassment.” Brew v. Holder, EEOC Appeal No. 0120090045 (2009).
It needs to be consistent and pervasive
Generally, a hostile work environment needs to be ongoing and pervasive, typically a single incident or isolated incidents of offensive conduct or remarks generally do not create an abusive environment.” Id.; EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990) (“A ‘hostile environment’ claim generally requires a showing of a pattern of offensive conduct.”).
Typically the “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee would not affect the conditions of employment to a sufficiently significant degree to violate Title VII.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). However, a limited number of highly offensive slurs or derogatory comments may in fact state a claim or support a finding of discrimination under Title VII. See, e.g., Yabuki v. Department of the Army, EEOC Request No. 05920778 (June 4, 1993) (single incident of verbal abuse and negative comment concerning Japanese people sufficient to constitute race and national origin discrimination); Brooks v. Department of the Navy, EEOC Request No. 05950484 (June 25, 1996) (three racially derogatory comments over a two-month period by an individual with a history of making such statements was sufficient to state a claim); McAllister v. Department of Defense, EEOC Request No. 05960416 (May 22, 1997) (a supervisor’s disparaging and racist comments to complainant, in conjunction with prior comments by the supervisor demeaning to other protected classes, was sufficient to justify an AJ’s finding of discrimination).
All these cases really just tell us that: it depends. But the more shocking the abuse or negative environment you have been subject to, the less duration or instances of exposure you will have to demonstrate. To put it more directly: as the harassment becomes more severe judge’s will require less instances of the harassment to support a finding of actionable discrimination. Additionally, physical violence, clearly offensive conduct, or group harassment will shift the balance in favor a conclusion of a hostile work environment.
A hostile work environment is much more than just an unpleasant workplace. While each case is different, generally you must make a showing of a persistent and offensive working environment that was generated as a result of your membership in a protected class. Ultimately, it is critical that you consult with an attorney early on if you think you have been subject to harassment or a hostile work environment because the deadline to report discrimination is only 45 days.
We hope you found this article informative.