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Courts have considered the following factors as criteria for whether there exists a hostile working environment:
- Whether the victim belongs to a protected class
- Whether the conduct happened in the workplace
- Whether the behavior was physical or just verbal
- Whether there was physical contact
- The frequency of the behavior
- How severe or offensive the conduct was
- How others reacted
- Whether the actor was reprimanded
This list is not all-inclusive, though. Furthermore, just because some of these criteria are met does not automatically make it a hostile working environment. Courts have stressed that it is a very factual inquiry.[1]
What is a hostile work environment?
A hostile work environment is a workplace where inappropriate behavior is severe or pervasive enough to amount to workplace harassment.
That behavior targets someone for being in a protected class. While many hostile work environment claims are for sexual harassment, behavior is inappropriate if a reasonable person with the targeted trait would find it offensive, intimidating, or hostile.[2]
The victim of a hostile work environment does not necessarily have to suffer an adverse employment action, like a demotion. Simply being the target of hostile behavior that is severe or pervasive is enough.
What behaviors can contribute to a hostile environment?
The following behaviors have been deemed to contribute to a hostile work environment:
- Sexually fondling someone in the workplace,[3]
- A male supervisor’s sexual comments nearly every day about a female subordinate’s clothing and appearance,[4]
- A male coworker simulating sex acts for the female worker to see, as other male coworkers laughed,[5]
- Sexual, homophobic, or racial slurs that are directed at the complainant,[6]
- Hanging a noose for a Black coworker to see,[7]
- Forbidding employees to speak any language other than English, contributing to ethnic tension and making national origin a disadvantage in the workplace,[8] and
- Persistent and harassing comments about a worker’s age, like calling them “grandpa” or “senile.”[9]
However, not all unwelcome conduct like this will create a hostile workplace. For example, the following types of offensive conduct may fall short:
- Isolated incidents of inappropriate behavior,
- Conduct that the target finds to be merely annoyances, rather than offensive,
- Swearing, when it is not directed at someone because of their religion,[10] and
- Minor but inappropriate conduct by coworkers that is quickly reprimanded by supervisors before it becomes pervasive.
A hostile working environment is one of the two types of workplace harassment recognized by state and federal employment law. The other is “quid pro quo” harassment.
Victims of hostile work environments can file a claim with the EEOC.
What is a protected class?
A protected class is a trait that people either cannot change about themselves, or should not be forced to change. State laws and federal laws, including Title VII of the Civil Rights Act of 1964, list these protected characteristics. They often include a person’s:
- Race
- Gender
- Sex
- Sexual orientation
- National origin
- Genetic information
- Age (age discrimination is also covered by the Age Discrimination in Employment Act)
- Marital status
Offensive behavior that targets someone for belonging to any of these protected classes can violate state or federal discrimination laws. Victims can file hostile work environment cases against both their harasser and their employer.
How can a victim file a claim?
Workers in the United States have a right to a safe workplace. If someone’s harassment is making it offensive and hostile, the victim can invoke those rights.
Many anti-discrimination laws require victims to report their experiences to their human resources department, first. Skipping this step can make it more difficult for the victim to hold their employer liable for the hostile work environment that they have fostered. Notifying the human resources department of the issues puts the employer on notice that there is a problem.
If the employer’s response is inadequate, the victim can turn to the Equal Employment Opportunity Commission, or EEOC. By filing a charge with the EEOC, the victim can trigger an investigation and bring their employer to mediation.
If the mediation does not resolve the issue, the victim can reach out to a law firm and talk to an employment lawyer for legal advice and to file a lawsuit.
[1] See, e.g., Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).
[2] See, e.g., Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) (reasonable woman) and Abramson v. William Paterson College of N.J., 260 F.3d 265 (3d Cir. 2001) (reasonable person of the same religion).
[3] Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).
[4] Rosario v. Department of the Army, 607 F.3d 241 (1st Cir. 2010).
[5] Ocheltree v. Scollon Productions, Inc., 335 F.3d 325 (4th Cir. 2003).
[6] See, e.g., Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991).
[7] Williams v. New York City Housing Authority, 154 F.Supp.2d 820 (S.D. N.Y. 2001).
[8] Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993).
[9] See e.g., Kelewae v. Jim Meagher Chevrolet, Inc., 952 F.2d 1052 (8th Cir. 1992).
[10] Rivera v. Puerto Rico Aqueduct & Sewers Authority, 331 F.3d 183 (1st Cir. 2003).
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
