The Difficult Task of Legally Proving a Hostile Work Environment

The legal concept of a "hostile work environment" comes from judicial decisions interpreting the language of the Civil Rights Act of 1964 prohibiting discrimination based upon race, color, religion, sex, and national origin in the terms, conditions, or privileges of employment. While frequently applied to allegations of sexual harassment, it has been applied in other situations, such as racial or religious discrimination. Other legislation incorporated age and disability discrimination. Note that state legislation may include additional categories such as marital status or sexual orientation. This comment briefly reviews the legal requirements when alleging a hostile work environment in the context of employment. Always consult an experienced attorney in discrimination and employment situations generally.

Numerous court decisions outline the requirements to successfully prove a hostile work environment claim.

1. The plaintiff must meet the statutory definition of "employee."
2. The plaintiff must belong to a protected group (the statutory categories such as race, religion, sex, national origin, etc.).
3. The harassment must be related to membership in that protected group.
4. The conduct complained of must be "unwelcomed" (particularly relevant in sex discrimination cases).
5. The conduct must be sufficiently severe or pervasive as to alter the conditions of the victim's employment.
6. The employer must be directly or vicariously (an agency concept such as conduct by a supervisor) liable for the conduct.
7. The employer must have known or should have known of the harassment and failed to take prompt remedial action.
8. The harassing conduct must not be in retaliation of the employee exercising a legally protected right.

It is noteworthy that numerous assertions of a hostile work environment are dismissed prior to trial by summary judgment in favor of the defendant. Summary judgment happens when there is no genuine dispute concerning material (legally significant) facts and the moving party (one requesting summary judgment) should prevail as a matter of law. Numerous decisions state that allegations, assertions, or speculation are insufficient to raise a question of fact that a jury should decide.

From January until mid-June 2016, twenty-five reported federal Court of Appeals decisions contained the phrase "hostile environment." Not all of the cases were based upon employment. Twenty-one of these decisions affirmed a dismissal of a hostile environment claim. Four decisions reversed a federal District Court's dismissal of a hostile environment claim (summary judgment) and indicated that the case should go to trial. No case contained an affirmation of a finding of a "hostile environment."

Volunteers, for example, may not qualify as "employees." While a variety of harassing incidents might occur at work, is the plaintiff able to link them to her or his protected status? Workplace rudeness, alone, is not unlawful. Emails containing discriminatory language or directly discriminatory comments are frequently necessary. So called "equal-opportunity harassment" cases, in which the conduct occurs across-the-board and is not related to the plaintiff's membership in a particular group, may be unsuccessful. Again, impoliteness or supervisor rudeness directed to all employees, as such, is not legally prohibited. Furthermore, the conduct must be severe and pervasive and unreasonably interfere with the individual's work performance. These are high hurdles for a plaintiff to clear.

How would a "reasonable" person in the plaintiff's position react to the conduct? Factors that courts consider in this analysis include: the severity and frequency of the conduct; whether or not the conduct could be considered physically threating or sufficiently emotionally damaging; was the perpetrator a supervisor or a person with authority over the employee; were there multiple perpetrators; and the total workplace circumstances.

Because the employer must have knowledge of the conduct, conventional wisdom recommends that employers have policy statements defining prohibited conduct, undertake specific workplace training, and have a well-publicized complaint procedure that goes outside the normal chain-of-command. Anti-retaliation policies for filing a complaint must be announced and be sufficiently easy to follow. The employee, in turn, must exercise that procedure. Then, to be legally accountable, the employer must not have reasonably responded or have remained indifferent to what was occurring. A prudent employer will avoid many legal pitfalls.

When workplace favoritism exists based upon unlawful discrimination, this may create a hostile work environment. Of course, the complaining employee must be otherwise qualified for the denied position. However, as is true generally, isolated incidents of favoritism are not legal violations. There must be a pattern of conduct. In some cases, such as when an employer refuses to promote women with young children but promotes men with young children, the employer's usage of different standards may be a legal violation.

Conduct directed to others, when the complaining party is not the target, may occasionally create a hostile work environment. There are successful cases involving a widespread sexually-charged workplace atmosphere. However, to be successful, one must prove a consistently repeated pattern of blatant and highly offensive conduct.

Clearly, investigations of discrimination must be conducted with strict confidentiality under a need-to-know standard to avoid damaging either the complaining party or the victim of an unfounded complaint. These difficult situations require pre-planning and wise management. However, conventional wisdom suggests that employees must know that the same standards apply to all levels of employees, including executives, and that allegations are taken seriously.

This comment provides a brief and incomplete educational overview of a complex subject and is not intended to provide legal advice. Always contact an experienced attorney in all specific discrimination and employment law situations.