Clearing the Confusion of a Hostile Work Environment

Lindsey Novak on

Many employees think a workplace that is emotionally upsetting, verbally abusive or stress-inducing meets the legal requirements of a "hostile" work environment. According to Stephen Bourtin and Jason Krellenstein, attorneys with The Boyd Law Group, the requirements for a legally actionable "hostile work environment" set the bar much higher than simply working for a rude, demanding boss or among sniping, mannerless coworkers. "A common misconception is that there is a legal remedy for an unpleasant workplace. The reality is that the law will shield workers from discrimination, but it won't inoculate them from ugly or mean discourse."

Federal employment discrimination statutes and the law of most states, including Connecticut, Texas and New York, suggest at least three different theories of actionable hostility. The most common originates from sexual discourse or behavior such as unwelcome sexual or vulgar comments, sexual advances, depictions of a sexual nature or physical contact of a sexual nature. The offensive conduct must be so harsh or pervasive that it adversely affects a term or condition of employment or impairs work performance. Often, if this kind of case is to survive in court, the employer may need to have been aware of the conduct and failed to take reasonable steps to address it. There can be exceptions, though, when recourse to correct the unwanted behavior is limited because the harasser occupies a preeminent position of power in the organization, such as the individual's direct supervisor or head of the company.

A second form of hostile work environment involves the same type of activity -- serious or pervasive hostility, intimidation or offensive conduct -- but the sexual or gender-based component is replaced by offensive conduct targeting race, gender, religion, national origin, age, disability or other federally protected status. The offending behavior must be pervasive or intensely harsh and must materially affect some aspect of the employment relationship. If the harassment is caused by a co-worker rather than a supervisor, the employer's liability may be reduced if the organization acts promptly to investigate the accusation and take corrective action. The organization's liability may be entirely reduced if the organization had never been made aware of the problem until after the employee made the claim.

Each type of hostile work environment requires some of the same basic information. First, there is the degree of the hostility that relies on two factors: 1) severity and 2) pervasiveness. These concepts overlap and work together on a sliding scale, but either element, if sufficiently egregious, may support a claim on its own. This means a single, severe incident, such as a sexual assault at work, may itself create an actionable hostile work environment. Less severe cases based on single or isolated incidents are often dismissed. On the other hand, a prolonged series of less shocking incidents, such as crude or offensive comments or jokes occurring with sufficient ongoing regularity, could be actionable if found to be highly pervasive.

The offensive conduct also must often impair the victim's ability to perform his or her duties or job function. Sometimes, such a report or investigation evaluates whether the workplace is sufficiently toxic to prevent reasonable employees from meeting performance standards. For pragmatic reasons, this is a difficult burden -- and different individual standards of workplace sensitivities prohibit a one-size-fits-all analysis. Most courts will consider whether the hostility was persistent or isolated, whether physical contact is involved, whether the victim could have reasonably avoided the abuse, whether the hostility was kept secret or was open and obvious, and whether and how the victim sought remediation from the employer, among other factors.

Though New York's standards for a hostile work environment are generally consistent with Texas' standards, workplace attitudes and tolerances often can differ. As with Texas, a New York "hostile work environment" often involves sexual harassment, but any form of discrimination under Title VII will suffice. The allegations may be based on a single incident of extraordinary severity sufficient to cause "a transformation of the plaintiff's workplace" -- or may describe a series of continuous and related incidents, each of lesser gravity, but in the aggregate creating a poisonous atmosphere.


New York courts look for both subjective and objective criteria. The former accounts for the victim's perception of the subject events; the latter considers whether a reasonable person would understand the work environment to be hostile or abusive. As in Texas, the maltreatment must be directed at the employee specifically because she or he is within a protected class, which may, in sexual harassment cases, encompass gender or gender identity.

Determining a hostile work environment is not an easy matter. Courts try to separate the merely crude, immature, impolite and boorish conduct from environments so irredeemably poisoned by discriminatory or abusive behavior that ordinary functioning is either impossible or seriously impaired. Most court jurisdictions have emphasized that the laws on hostile work environments are not intended to serve as "workplace civility codes." Next week, we will further explore intentional infliction of abuse for considering a hostile work environment.


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