Workplace bullying is on the rise across America. It can take the form of malicious gossip or defamation, sexual harassment, or offensive remarks. Many kinds of unwelcome conduct can generate a hostile work environment, but generally it is found when someone in a workplace engages in discriminatory harassment against one or more employees. The harassing person can be a coworker, supervisor, client, or even an independent contractor.
Discriminatory harassment based on race, genetics, age, sex, religion, national origin, or disability can create a hostile work environment, as can retaliation for complaining about discrimination on the basis of these protected characteristics. Certain states have enacted stronger protection through their anti-discrimination laws than what is offered by the federal government. For example, they may cover employees at smaller companies.
Standards for Harassment
Offhand comments or mild irritations are not considered harassment. A coworker who has a habit of slamming doors, or a supervisor who doesn’t take your ideas seriously, does not necessarily create a hostile work environment. Instead, actionable harassment must be so severe or pervasive that it interferes with an employee’s ability to perform his or her work or changes the terms and conditions of employment.
Elements of Unlawful Harassment
1The harassment is so severe or pervasive that it interferes with the employee’s ability to perform their work or changes the terms and conditions of their employment
2The harassment is related to the employee’s membership or perceived membership in a protected group, such as their race or gender
A hostile work environment can be harassment based on a person’s actual identity or a person’s perceived membership in a protected group. For example, if several coworkers direct verbal insults on a daily basis towards a man who wears a turban because they believe he is Iraqi, this could create a hostile workplace environment even if the man is actually from India. Similarly, if a businessman constantly shows pornography to his secretary and asks her about her sex life, this would likely create a hostile work environment.
The person who brings the claim must also reasonably believe that tolerating the hostile work environment is a condition of continuing to be employed. If the secretary in the above situation knows that a report to human relations likely would end the harassment, she is less likely to be able to maintain a claim.
Although the complainant must be an employee of the company, even a witness to severe harassment can complain about a hostile work environment. For example, if a coworker witnesses the harassment of the man believed to be Iraqi and suffers emotional distress as a result, he or she may be able to bring a claim alleging hostile work environment.
Check your employee handbook for your employer’s anti-harassment policies.
It is important to follow your employer’s anti-harassment policies as outlined in an employee handbook or other documentation. Otherwise your employer may raise what is called the Faragher-Ellerth defense to a Title VII claim. This defense is available if an employer can prove that it exercised reasonable care to promptly correct the harassing behavior and that the employee unreasonably failed to take advantage of preventive opportunities provided by the employer.
If your employer fails to take appropriate action in response to your claims related to a hostile workplace environment, you may file a complaint with the Equal Employment Opportunity Commission or the state department in charge of the type of harassment affecting you.