When Does a Workplace Qualify as Being Hostile?

 
 

Claims against employers are rising, with a majority alleging employees or former employees were subjected to a “hostile work environment” or “hostility in the workplace.”  A 2010 poll conducted for Bellingham, Washington-based Workplace Bullying Institute said that 37% of U.S. workers - 54 million people - believe they have been subjected to a workplace “hostility.” While “hostile workplace” and “hostile work environment” are common phrases, few circumstances meet the legal definition required.

Misapplying “hostile” increases unfounded legal claims and tension and strained relationships between employers and employees and/or between coworkers, while misunderstanding “hostile” causes management to mishandle such allegations. 

Although legislation exists in more than 10 states (including Washington as HB 2142 and SB 6622), there currently is no federal or state law that explicitly and generally outlaws “bullying” at work or “hostile” work environments.  Instead, laws (such as Washington’s Law Against Discrimination, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, American With Disabilities Act, Equal Pay Act, and so forth) prohibit discrimination and harassment (including sexual harassment) in most workplaces. 

Only certain workplaces are excluded because of size and/or composition of workforce.  Anti-discrimination and harassment laws protect employees from being treated negatively in hiring/firing/layoff decisions, pay practices, promotional and job assignment decisions, training opportunities, etc.) because of their actual or perceived inclusion in a protected class or status (e.g., race, gender, age, ethnicity, marital status, religious affiliation, veteran status, disability, and in some circumstances because of their parental status, political affiliation, or sexual orientation). Employers are also precluded from retaliating against an employee making discrimination or harassment claims and/or participating in a claim-triggered investigation.

Determining harassment or discrimination is fact-specific and the elements that must be established depend on the type alleged. In general, to establish that a person has been harassed or discriminated against under Washington Law Against Discrimination, that person must show: (1) the conduct was unwelcome; (2) the harassment occurred because of the person’s class or status; (3) it affected the terms or conditions of employment; and (4) it was imputed to the employer.  To impute harassment to the employer, the harasser typically must be a company owner, operator, manager or supervisor.  If the harasser is a co-worker, the claimant must establish that the employer knew about the harassment but did nothing to prevent it.  Under certain circumstances, a person may claim harassment even if he simply witnessed the harassment of another, provided other elements of the claim exist. To establish discrimination, evidence must show: (1) the person was an actual or perceived member of a protected class; (2) performing satisfactory work; (3) subjected to an adverse employment action or treatment (fired, laid off, not promoted, denied a particular job assignment, harassed, etc.) that other non-protected coworkers doing substantially the same work were not subjected to or that the person was replaced by a non-protected person.

Managers, supervisors or co-worker rarely blatantly admit treating someone adversely because of his actual or perceived inclusion in a protected class.  Therefore, there is rarely a “smoking gun” to prove discrimination or harassment.  Rather, they are usually proven by the whole and totality of the circumstances occurring. Indeed, sexual harassment is most often proven by the circumstances of the work environment at issue and not because there is evidence that the harasser has proposed or required a “quid pro quo” exchange, such as when the harasser provides preferential treatment in exchange for a date or sexual act, or punishes the employee for declining a date or other sexual advance. The surrounding circumstances considered include the conduct and speech of the actors at issue.  If the conduct and speech rise to the legal definition of being “hostile” and result in an adverse employment action against or other harm to the protected party, then that conduct and speech is usually considered definitive evidence of discrimination or harassment.

Conduct and speech typically considered “hostile” is intimidating, offensive, abusive and/or otherwise offensive, going beyond rudeness or casual joking.  It must reach a level of harassment, mockery, ridicule and/or unrelenting teasing. Isolated incidents or petty slights are generally not sufficient to create a hostile work environment.  To qualify as a “hostile” workplace, conduct must be intentional, severe, recurring and/or pervasive and interfere with the employee’s ability to perform his/her job.  To determine whether conduct or speech is a minor offense or is intimidating, offensive or abusive, a court or investigating agency will consider how often it occurred and the reaction it garnered, and ask how a “reasonable person” would characterize it.  It must be considered “across the line” not only on a subjective basis by the person making the complaint, but also on an objective basis by “reasonable people.” In other words, the agency investigating the complaint or a judge or jury adjudicating a claim must adopt the perspective of a reasonable person and determine what his/her reaction would be to a similar environment under similar or like circumstances.

The line between generic harmlessness or isolated joking and ridicule or mockery of a person because of his/her protected status is typically reasonably clear.  In a recent case decided by the Equal Employment Opportunity Commission, an employee was awarded $166,500 because he was subjected to routine teasing by his manager and the company’s human resources director.  In another case, a woman was awarded approximately $8 million dollars after a jury concluded that because she was a woman she was subjected to regular and egregious tormenting by co-workers, including being trapped in a port-a-potty for 20 minutes on a hot day, routinely shown pictures of naked women, ridiculed because she was working in a male-dominated industry, regularly forced to clean up chewing tobacco spit, etc.   The multiple ways she was targeted and treated differently over a long duration of time clearly led to the high verdict.

The issues and potential liability related to claims of “hostile work environments” are complex and shouldn’t be ignored. To minimize the misapplication of the allegation and the risk for actual liability, employers should implement clear policies against harassment and discrimination; establish, follow and enforce protocols and procedures for reporting and investigating complaints; and make a good faith effort to swiftly and adequately respond to and resolve any substantiated complaints or legitimate issues that do arise with open communication, confidentiality, education, and corrective action whether that be to institute policy changes and/or discipline (up to and including termination). 

Understanding when a workplace truly qualifies as being hostile is imperative for employers and employees.

The foregoing is provided for educational purposes and should not be used as a substitute for legal advice.  The legal issues surrounding employment discrimination and harassment claims are complicated and very fact-specific. Questions or concerns should be discussed with an attorney.

Renea I. Saade is an attorney with the law firm Oles Morrison Rinker Baker LLP.  In her twelfth year of practicing law, Renea regularly advises employers on various employment law matters.  She may be reached at 206.623.3427 or saade@oles.com

On Reflection: Corporate Game Changer

On Reflection: Corporate Game Changer

Gamification software from a UW startup makes biz-school case studies more authentic.
| FROM THE PRINT EDITION |
 
 

Imagine you’re the CEO of an airline in crisis. Customers and shareholders are unhappy. Your employees have just gone on strike. What do you do? Give in to union demands? Hold your ground and negotiate? Fire all the employees? 

It’s the first of a cascading set of decisions you must make in The Signature Case Study, a new interactive game developed by Seattle-based Recurrence (recurrenceinc.com) in partnership with the University of Washington’s Center for Leadership & Strategic Thinking (CLST). Players take one of five C-suite roles and each player’s decision changes the options available to the others and affects their total scores based on employee, shareholder and customer satisfaction.

The Signature Case Study takes the case-study method, a paper-based system pioneered by the Harvard Business School, and uses game techniques to make it more entertaining and accessible while also giving students and teachers immediate feedback on the quality of their decision making.

Data on 19 variables derived from real airlines on things like lost luggage, fuel costs, stock prices and customer satisfaction are built into algorithms that drive the game and can result in thousands of academically validated outcomes.

CEO and co-inventor Brayden Olson named the company after Friedrich Nietzsche’s doctrine of eternal recurrence, the notion that all life will repeat itself through eternity. The interactive case study, he says, allows people to learn from mistakes and develop critical thinking skills that improve their judgment so they won’t make similar mistakes in real life.

While traditional case studies depend heavily on the skills of professors to engage students, The Signature Game Study’s software uses game elements to require interactivity, says co-inventor Bruce Avolio, a professor of management at the UW’s Foster School of Business and executive director of CLST.

The game shows players how decisions made early on can narrow their course of action down the road. They also learn the importance of teamwork to overcome the toughest challenges. “Great games can be both more fun and more challenging,” says Avolio, who sits on Recurrence’s board of directors.

The product, released early this year, has already been adopted at more than 30 schools, including the UW, Stanford, Penn State, Johns Hopkins and the University of Texas, to teach leadership, organizational behavior and strategy. The cases sell for $47.50 per student; Recurrence is looking to add cases in areas such as operations, finance, marketing and entrepreneurship. It’s also working with the University of Alabama nursing school to develop a case study to teach such skills as diagnosis and health care management.

With more than 15,000 business schools in the world, Olson says the market is huge. He notes that publishers of printed case studies are selling 12 million a year, but they recognize that the interactive case study is the future and are looking for Recurrence’s assistance in developing them.