In today’s employment law blog, we’re continuing our discussion of misunderstood employment law terms. Last blog, we discussed “wrongful termination.” Today, we’ll clear up some misunderstandings about the term “hostile work environment.”
After wrongful termination, hostile work environment is our leading inquiry from potential clients. Unfortunately, many people work in unpleasant or unfriendly workplaces. The law, however, does not impose a general workplace civility code for workplaces and so many unpleasant work environments do constitute legally cognizable “hostile work environments.” Rather, the law requires that several prerequisites be met, before an employee can sue an employer for a hostile work environment.
Hostile work environment is usually considered as one of two types of sexual harassment claims that can be brought (quid pro is the second type which will be covered in a subsequent blog). Hostile work environments exist where an employee is subjected to hostile, unwelcome conduct, which is either severe or pervasive, and which is directed at the employee because of the employee’s “protected class.” This is a lot to digest, so let’s break this down.
First, the conduct must be hostile and unwelcome which is usually easy to show. Basically, this prevents employees from complaining about conduct which is welcome. In other words, if a male employee massages the shoulders of a female employee, if the female doesn’t mind the male touching her, then that conduct could not form the basis of a hostile work environment claim. If, however, the female told the male to stop, but he continued, it is clear that the conduct was unwelcome and hostile. Notably, the conduct does not have to be sex based. For example, many people understand that showing pornographic pictures in the workplace may be sexual harassment. But, the law recognizes that some “gender-neutral” acts may also be harassment. These are acts which don’t have a sexual connotation. An example might be practical jokes which aren’t sex based, but which the males who dominate the workplace play on the only female employee in the workplace.
Next, the conduct must be severe or pervasive. This means that either a few incidents must be very extreme in nature, or the unwelcome conduct is so frequent so as alter the working environment. An example of a severe act might be a male employee touching a female employee’s genitals. One famous “severe” case involves an employee using a highly offensive and derogatory word directed at a minority. An example of a pervasive case might be where a female employee receives “dirty jokes” by email several times a week for many weeks, months, or years.
Finally, the conduct must be directed at the employee because of the employee’s membership in a protected class. Overt sexual harassment is easy to spot — the conduct is directed at the employee based on her sex. But, Courts have recognized that other hostile conduct directed at employees based on their protected class may similarly give rise to a claim. For example, conduct directed at an employee based on race, religion, age, or disability may give rise to a hostile work environment claim. It’s sometimes not so easy to spot these hostile work environments or to distinguish them from conduct which is not actionable, such as where hostile conduct was directed at an employee simply because of personality conflicts.
In sum, hostile work environment is a legal term of art. It takes a trained eye to spot a hostile work environment claim. If you’re being subjected to unwelcome, hostile conduct at work, an employment lawyer at Famighetti & Weinick, PLLC may be able to help you. Contact us at 631-352-0050 or visit our website at https://www.linycemploymentlaw.com. Like our facebook page to stay up to date on all of our employment law blogs, including our upcoming blogs about quid pro quo sexual harassment and whistle blower retaliation.