A workplace that is free of hostility and harassment does not seem like it should be too much to ask, but people all over the country still deal with workplace bullying. This can take a great toll on a person, both mentally and physically.
It also harms the employer by creating an unhealthy workplace. Unhappy employees tend not to be productive employees. Our legal system provides workers with ways to fight back against unlawful harassment.
What Constitutes a Hostile Work Environment?
Not all bullying in the workplace is unlawful. Employment statutes at the federal, state, and local levels prohibit discrimination on the basis of race, sex, religion, disability, and other factors. And discrimination includes harassment based on any protected category.
In order to deal with workplace harassment, it is important to know what constitutes a hostile work environment in a legal sense. The Equal Employment Opportunity Commission (EEOC), which enforces federal employment discrimination laws, defines a hostile work environment as “unwelcome conduct” based on a protected characteristic, which is “severe or pervasive” enough that a “reasonable person” would consider it to be “intimidating, hostile, or abusive.”
Protected Characteristics
At the federal level, Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of five categories: race, color, national origin, religion, and sex. Other federal statutes prohibit discrimination on the basis of age and disability. Legal protections based on these seven characteristics apply nationwide. Some state and municipal employment statutes have broader coverage than federal law, adding protections for characteristics like sexual orientation, marital status, and gender identity or gender expression.
Workplace bullying only rises to the level of unlawful harassment if it is based on a protected characteristic in the jurisdiction where it takes place. Sexual harassment is a form of sex discrimination under federal law. It is unlawful everywhere in the country. If harassment is based on a characteristic that is not protected by federal law, it is only unlawful in a state, city, or town where it is protected.
Unwelcome Conduct
A hostile work environment involves conduct that the recipient does not invite or welcome. Some instances of workplace harassment are so overtly crude that almost anyone would recognize it immediately as unwelcome. There is no specific legal definition of “unwelcome,” but a few general guidelines to identify such conduct might include:
- The recipient does not initiate the conduct
- The recipient does not encourage the conduct once it has occurred; and
- The recipient rejects the conduct.
Any of these might seem ambiguous in some situations, and they might seem to place the burden on the recipient of harassing behavior. In a workplace setting, a person might not be able to outright reject unwelcome conduct, especially if the person engaging in the unwelcome conduct is a supervisor or manager.
Severe or Pervasive
A single inappropriate joke or remark probably does not create a legal claim for a hostile work environment. The EEOC describes these as “petty slights, annoyances, and isolated incidents (unless extremely serious).” An ongoing pattern of comments, jokes, or other actions, however, can have a cumulative effect on the recipient. A person might dread going into work because of the ongoing mockery or abuse directed at them or others.
Some courts use a definition of hostile work environment that uses the term “severe and pervasive.” Others use the term “severe or pervasive.” Under the definition that uses the word “or,” it is possible for a single incident to support a hostile work environment claim. The Third Circuit Court of Appeals, for example, has held that “some harassment may be severe enough to contaminate an environment even if not pervasive.” Castleberry v. STI Group, 863 F.3d 259, 264 (3rd Cir. 2017).
Reasonable Person Standard
The allegedly harassing behavior must be something that a reasonable person in similar circumstances would find intimidating, hostile, or abusive. A “reasonable person” standard is fairly common in the law. Common hostile work environment claims involve sexual jokes or racial slurs in a work setting, which many people would find distressing.
How to Handle a Hostile Work Environment
If you are experiencing a hostile work environment, the following can help you assert your rights and take care of yourself:
Know Your Rights
You have a right to a workplace free of unlawful discrimination, harassment, and retaliation. Federal law protects workers from harassment based on the seven characteristics listed earlier. Laws in your jurisdiction might include additional protections.
Document the Harassment
Employers defending themselves against hostile work environment claims might try to question the reliability of your memory, or your perception of events. Keeping records of specific incidents as they occur, including dates, times, descriptions of the incidents, and possible witnesses can help build your case.
Notify Your Supervisor, HR, or Management
Reporting harassment can create a record that could help you in future legal proceedings. Your employer might have a harassment policy or code of conduct in their employee handbook. If you find a sympathetic ear, it can help resolve the matter altogether. If your employer has a human resources officer or department, they have a responsibility to investigate your claims.
If your supervisor is the person harassing you, report this conduct to someone else at your company. Remember that your company is not allowed to retaliate against you—by firing you, disciplining you, or making any other unfavorable job-related decisions—based on your complaints of harassment.
Assert Your Rights
The EEOC and various state and local agencies exist to investigate claims of unlawful workplace practices. They are often the first place to go if your employer will not resolve the situation to your satisfaction. From there, you may be able to take your employer to court.
Talk to an Employment Attorney
Every jurisdiction has different rules and procedures for employment discrimination claims, including hostile work environment. If reporting the matter to your employer does not resolve the problem, you might need to speak with someone who knows the laws of your city or state, and who can help you figure out your next steps.