Understanding what does and doesn’t constitute illegal harassment
Work isn’t always pleasant. Nearly anyone who has been in the workforce for a few years has dealt with unfair bosses, difficult coworkers, personality conflicts, frustrating customers, poorly maintained workspaces, or other problems at work. Sometimes, you’ll hear employees describe these circumstances as a “hostile work environment.”
However, an unpleasant or uncomfortable workplace is not necessarily a hostile work environment in the legal sense. A difficult environment at work is usually a result of poor management or decision-making on the company’s part, but that is not illegal. To have a legal claim against your employer, your work environment must meet specific criteria to meet the definition of a hostile work environment.
If you suspect you’re in a hostile work environment, you need to know your rights – and take action to protect them. It’s best to discuss your situation with an experienced employment law attorney as soon as possible.
The key elements of a hostile work environment
Again, annoyances, rudeness, petty slights, and other ordinary conflicts in the workplace do not constitute a hostile work environment in themselves. To rise to the level of a hostile work environment, the harassing behavior in question must be unwelcome, pervasive, severe, and persistent. It must be meaningfully disruptive to the victim’s work. Finally, to have a legal claim against the employer, the behavior must be something the employer knew about and did not adequately address.
The legal definition of “harassment” at work
Illegal harassment in the workplace is unwelcome conduct based on membership in a protected class. At the federal level, protected classes include:
- Race, color, or national origin
- Religion
- Sex, sexual orientation, or gender identity
- Pregnancy
- Disability
- Genetic information, or
- Older age (40 and up)
Federal law also prohibits harassment against employees in retaliation for filing a discrimination charge in good faith, participating in an investigation, or opposing employment practices they reasonably believe are discriminatory. Some states have established additional protected classes such as marital status or political affiliation.
Unlawful harassment doesn’t have to be committed by a supervisor or manager – the harasser could be a coworker, or even a non-employee such as a vendor or customer.
Unlawful harassment also doesn’t need to involve financial harm, such as loss of pay, or termination. It doesn’t have to involve poor performance reviews or loss of desirable work assignments.
What matters is that the unlawful conduct happens at work and the employer doesn’t take adequate measures to stop it.
What is “pervasive, severe, and persistent” conduct?
In general, a single incident does not rise to the level of a hostile work environment unless it is particularly extreme, such as assault. Usually, a hostile work environment is something that continues over a substantial period of time. Some examples of conduct that can lead to a hostile work environment include:
- Offensive or inappropriate joking
- Obstruction of movement within the office
- Frequent comments about physical appearance
- Forwarding inappropriate media through email or office messaging systems
- Mocking or teasing on the basis of a protected characteristic
- Unwelcome touching or violations of personal space
A hostile work environment is often sexual in nature – for instance, unwanted sexual advances or frequent discussion of sexual activities – but, again, this is not required to meet the legal definition. What is required is that the work environment becomes intimidating, offensive, and abusive, to the point where it interferes with work. Courts consider both the frequency and severity of the alleged harassment to determine whether it meets the legal definition of a hostile work environment.
Understanding liability in hostile work environment cases
If the harassment that creates a hostile work environment is committed by a supervisor and involves a negative employment action (such as termination or loss of wages), then the employer is automatically responsible – and must take reasonable, prompt action to prevent or correct the harassing behavior to avoid legal liability. An employer can also be held responsible for harassment by non-employees and non-supervisory employees if the employer knew or should have known about the harassment.
Either way, once the employer becomes aware (or should become aware) of a hostile work environment, it’s on the employer to promptly address it. How that plays out depends on the nature of the hostile work environment and the cause of the harassment. If a single employee is committing harassment, for instance, then addressing the situation may be as simple as disciplining or firing that employee. When the problem is the culture of a whole department or even the entire organization, resolving it may require much more significant change, such as creating new policies, conducting training, monitoring internal communications for harassing content, and even making structural changes to the organization itself.
Regardless, it’s the employer’s responsibility to address the problem, and they can face legal consequences if they don’t.
What to do if you’re in a hostile workplace
As with any legal matter, if you are in what you believe to be a hostile work environment, you need to document the behavior in question. Take note of each instance of harassing behavior: when and where it happened, who was involved, and who witnessed it.
Follow your company’s protocol for filing an official report with your human resources department. Remember, federal law protects you from retaliation for filing a complaint in good faith. Put your complaint in writing, submit it to the right person, and keep a copy for your records in case the employer later tries to claim they were not aware of the illegal behavior.
Again, you need to prove that your organization knew about the harassment and failed to act. Documenting your official report helps with this. If you can prove a management employee witnessed or was aware of the hostile environment, document that as well.
A key element of a hostile work environment claim is that the harassment was severe and pervasive enough to interfere with your ability to do your job. Gather any performance reviews or other work assessments that can help show a connection between the harassment and changes in job performance. In addition, take note of any ways the harassment has affected your physical or mental health.
Talk to an experienced employment law attorney today
The laws around hostile work environments are complex and not always intuitive for employees (or employers, for that matter). Only a lawyer with experience handling employment law cases in your state can assess the situation and determine whether you have legal recourse. Remember, talking to a lawyer isn’t necessarily adversarial and doesn’t mean you’re obligated to file a lawsuit or take other legal action against your employer. It’s an opportunity to learn your rights, discuss your options, and work toward a solution.
Most employment lawyers offer free, confidential consultations, so you have little to lose by taking the time to talk to an attorney about your situation. If you suspect you’re in a hostile work environment, find an experienced employment law attorney in your area today.
Nilges Draher LLC is an employment law firm in Ohio.
