Hostile Workplace?
See What Qualifies
A workplace qualifies as a hostile work environment when harassment based on protected characteristics becomes so severe and pervasive that it affects a person’s or group’s ability to perform their job.
The behavior becomes illegal when it is unwelcome, pervasive, persistent and/or oppressive. There are hostile work environment laws in place intended to ensure a safe workplace for employees. The following will explain what situations qualify, and what legal standards must be met for it to be illegal.
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Seeking Legal Remedy
Laws that protect employees
A number of hostile work environment laws have been enacted to protect workers. Employers are prohibited from discriminate against individuals based on protected class status under Title VII of the Civil Rights Act. The American with Disabilities Act prohibits employer discrimination based on disabilities and provides protection from retaliation. Additionally, age discrimination against workers over aged 40 or over is prohibited under the Age Discrimination in Employment Act. Several hostile work environment cases have been won or settled against employers in recent years.
- In an EEOC case settled in 2022, an employee reported being routinely referred to with racial slurs by his supervisor. The settlement resulted in damages for the employee and required policy changes at the company. [1]
- Juries originally awarded $6.45 million in damages to employees who reported repeated sexual harassment (including pornography being repeatedly broadcast) and retaliation for coming forward with complaints. [2]
Proving that your work environment is hostile is more difficult than just experiencing unwelcome conduct. Proving you have a toxic work environment requires evidence. The law’s definition is highly specific, and you’ll need documented evidence of your claims. It may help to understand what classes are protected under the law, what behaviors do (and don’t) qualify, and how to prove these charges.
What Is Considered a Protected Class in the Workplace?
The U.S. Equal Employment Opportunity Commission (EEOC) is tasked with preventing employment discrimination against people with protected characteristics. Hostile work environment complaints will be investigated by this agency. It is only illegal if the employee was harassed in the workplace based on these characteristics. Failling to meet this legal standard may mean the situation was only unfair but not illegal. Other types of harassment may be covered by state and federal laws.
The protected characteristics were originally defined in the Title VII of the Civil Rights Act of 1964 and further expanded with the passage of the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA). These acts make it a violation to discriminate against employees and interviewees for any reason related to:
Employers are also forbidden from harassing anyone reporting a violation or participating in an investigation of discrimination or harassment complaints.
What Behaviors Can You Report?
Any unwelcome conduct that involves discrimination against protected characteristics may be considered harassment. According to the EEOC, harassment becomes an unlawful when:
- Enduring the offensive conduct becomes a condition of continued employment
- The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive [3]
- To constitute a hostile work environment the conduct must be unwelcome, pervasive, persistent, oppressive and and/or extensive.
Many acts may be considered “unwelcome conduct.” The following red flags and examples of offensive behavior have been used to demonstrate a hostile workplace in the past. [4]
Examples of Workplace Discrimination That May Be Signs of a Hostile Work Environment
You are required to give your employer a reasonable opportunity to rectify the situation. If having done so, they don't put a stop to the inappropriate behavior you can escalate to taking legal action.
- Sexual jokes at the expense of female employees
- Unwanted sexual propositions
- Physical assaults, threats and other kinds of workplace bullying
- Ridicule, mockery, insults and put-downs
- Racist jokes and other offensive jokes about protected characteristics, or at the expense of coworkers based on their protected characteristics
- The public display of offensive images, including sexual, violent, or discriminatory material
- Deliberate interference with work performance (for example, teasing and pranks that interfere with the employee’s work)
What Is Not Considered a Hostile Work Environment?
A specific set of conditions must be met for a workplace to be considered a hostile work environment. The EEOC is focused on harassment based on protected characteristics, and a hostile work environment only exists when this harassment can be shown to be prolonged and pervasive.
The following examples may all be considered abusive under some laws or company policies. Still, as they do not involve discrimination against protected class characteristics, the EEOC does not have the authority to pursue them:
- Rude or vicious supervisors: Generally, the EEOC has no power to investigate supervisors for rude, uncivil, or disrespectful behavior. They may be able to investigate if a supervisor is directing abuse at only one class of employees (for example, exclusively women, minority, or elderly employees) or targets an employee over a prolonged period based on protected characteristics.
- Supervisors who play favorites: The EEOC cannot investigate the fairness and merit of assignments or promotions in most cases. For such a case to proceed, you must be able to show that members of a protected class are being deliberately excluded from advancement because of their class.
- Isolated Incidents: Isolated incidents, such as supervisors yelling at employees, are insufficient to show a hostile work environment. These cases are investigated when there is evidence that the problems are ongoing and interfering with job ability.
- Personality conflicts: The EEOC cannot investigate cases where personality conflicts result in workplace strife. They cannot require workplaces to accommodate you with partners or supervisors who are a better fit. They are permitted to investigate if the strife results from repeated harassment or inciting acts based on protected characteristics.
How to complain to HR
When notifying human resources about inappropriate behavior or abuse in the workplace, we recommend doing so using email. It is important to document your complaint to HR in case they don't take action to remedy the situation and you are forced to seek legal remedy.
How to Prove a Hostile Work Environment
You will need to prove a pattern of relevant abuse to move forward with charges of a hostile work environment. Move forward by completing these steps ahead of an EEOC complaint.
Document all incidents of abuse
Preserve proof of incidents of abuse that you experience and evidence that you have asked the offender to stop. This may include emails with offensive content, phone pictures of images hung in your workplace, audio files of verbal abuse, and other proof. Some states allow the recording of others without their consent. Speak to a lawyer if you are unsure.
Keep copies of all documentation on computers and storage that you own yourself. Any documentation you’ve stored on company email addresses, laptops, clouds and hard drive storage may be deleted by the company at any time. Even if the company does not move to erase your files, any evidence not backed up elsewhere may be lost to a natural disaster.
Present your complaints to Human Resources
Your workplace must be given the opportunity to address complaints and take action. You should begin this process by sending a note of complaint to human resources describing what you are experiencing and detailing when/how long it has been going on. We recommend using email. Make sure to keep a copy of this letter for your own records.
Preserve all communications with Human Resources
You should attempt to preserve any information that HR provides for you during the investigation. Make copies of any messages they send you.
Document any inaction or incidents of retaliation
While you are waiting for the outcome of the HR investigation, watch for any evidence that you are facing retaliation for your reports. The following may be signs of retaliation.
- Your hours have been reduced
- You were suspended for the duration of the investigation
- You were fired
- You are written up multiple times in a short period despite never receiving writeups in the past
A retaliatory action taken by your employer in response to an employee taking a protected action opens a path to legal remedy for the victim.
Facing an Employment Situation Together
A hostile work environment claim can be made when you have experienced a pattern of inhibiting workplace harassment without it being reasonably addressed. Legal action may be possible after your workplace and the EEOC has investigated.
While the EEOC will be responsible for investigating these complaints, you can take advantage of legal advice at any stage. A lawyer will be able to answer your questions about the process, including what inappropriate behavior qualifies as harassment and what types of proof you should secure immediately.
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