Hostile environment

Scope

A hostile work environment can affect just about anyone, and impacts a wide range of people in the workforce. The coworkers causing the hostile work environment can vary depending on the situation. It could be someone’s peer within the same department or a coworker in another department. And it could also be a manager or member of upper management. It could even be a customer or vendor.

Regulatory citations

• None

Key definitions

• Protected class: Federally protected classes fall under Title VII, which applies to employers with 15 or more employees. It says people cannot be discriminated against in employment matters because of their:
  • Race
  • Color
  • Religion
  • National origin
  • Age (40 and over)
  • Sex (including sexual orientation and gender identity)
  • Pregnancy
  • Familial status
  • Disability status
  • Veteran status
  • Genetic information
  • Citizenship status

Summary of requirements

Harassment is basically unwelcome behavior, and can be unlawful when directed at a person in a protected class. Protected classes include race, sex, national origin, age, disability, and others.

Unlawful harassment often involves a hostile work environment, which is a pattern of offensive comments or behavior that affects a person’s ability to perform the job. Every company has a duty to stop harassment before it violates the law.

Harassment can include bullying and rude behavior, but this type of conduct is only illegal when based on a protected class. Some people are just bad-mannered. Their behavior doesn’t violate the law, but their conduct shouldn’t be acceptable at work.

Nature and extent of the conduct. A hostile work environment often raises questions about the nature and extent of the offensive behavior:

• First, consider the nature of the behavior. To be unlawful, the offensive conduct must be directed at someone in a protected class. Otherwise, it may be rude, but it’s probably not illegal.
• The extent of the behavior is also a factor. To be unlawful, the conduct must be severe or frequent enough to disrupt a reasonable person’s work.

Offensive behavior should not be tolerated in the workplace. Allowing such conduct can create a work environment where similar (and potentially discriminatory) comments also seem to be acceptable.

Also, many harassment cases involve the question of “how much offensive conduct is too much.” You don’t want to end up defending offensive behavior in court by claiming that it didn’t occur often enough to break the law.

This doesn’t mean that you have to discipline everyone who tells a joke, or that you must monitor the workplace and censor every comment that isn’t business-related. There is a difference between offensive behavior and workplace banter. Many employees exchange friendly jokes, and this usually isn’t a problem if no one gets offended.

However, banter can be a problem if it’s directed at someone in a protected class. Since derogatory comments of any nature can have a negative effect on morale and productivity, you should respond to complaints even if the conduct isn’t unlawful.

Protect your company and employees. Allowing offensive jokes or banter (especially based on a protected class) can make it harder to defend against a discrimination charge. A respectful workplace is also a more productive workplace.

Though not illegal, bullying can affect employee performance. The effects on morale and productivity should persuade you to address and stop such behavior. You may have policies or expectations of professional conduct, respect for co-workers, or even workplace violence that can be used to address bullying, or you can simply follow your procedures for investigating potentially unlawful harassment.