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. (UPDATE: Saade is no longer with Oles Morrison Rinker Baker LLP).