Hostile Work Environment Claims
We represent federal, Virginia and Washington, D.C. employees in hostile work environment claims. If you have been mistreated at work, especially in a consistent and/or repetitive manner, you might describe it as a “hostile work environment” based on harassment. But in a legal context, this term has a very specific meaning. Not all difficult or abusive workplace situations are actionable under anti-discrimination laws. If a situation is actionable, you may need to act quickly—especially if you are a federal government employee—in order to preserve your rights and potentially obtain relief. It is therefore particularly important to obtain legal counsel as early as possible in order to determine whether your case meets the relevant criteria to bring legal action. An EEO lawyer can also advise you as to what can be done to pursue the claim based on your type of employment and the facts of the case. Regardless, understanding the type of claim is a good first step.
Basics of a Proper Hostile Work Environment Claim
The federal anti-discrimination laws recognize two basic types of harassment claims, and they are fairly intuitive on a surface level: the harassment is either a pattern of conduct (or other change affecting the work environment in an ongoing way), or it is a discrete action standing by itself, such as a termination. If it is a pattern of abusive treatment, or an ongoing and harmful changed condition of the employment, it can be called a “hostile work environment,” often shortened to HWE. The idea behind HWE is that even if an employee is not directly fired, demoted, or otherwise subjected to a specific adverse action, the “terms and conditions” of their employment can still be changed—either formally, or informally and thus “constructively”—by a sufficiently substantial alteration to the work environment.
Two Key Components of HWE Claims
There are two key components of a proper HWE claim under federal law. The first component is that you must have been subjected to “unwelcome conduct” that was, or is, “severe or pervasive”—enough for the overall work environment to reasonably considered “hostile or abusive.” The second component, which is not obvious to many people and which is the source of much confusion, is that however the “unwelcome conduct” may be manifested, it must also be based on your membership in a legally protected group.
Protected Groups
Protected groups include race, color, or national origin; religion; sex and/or gender, including related statuses such as pregnancy; age; disability; genetic information; or having engaged in prior “protected” Equal Employment Opportunity (EEO) activity such as complaining about discrimination or participating in another’s EEOC complaint adjudication. (Discrimination on the basis of prior protected activity is called retaliation or reprisal). Note that this is at the federal level. States may add their own protected groups under their own anti-discrimination laws, but you can’t use state-specific additions to that list if you pursue your case via the federal EEO complaint process. For example, Virginia law protects against discrimination on the basis of marital status or military veteran status; at the federal level, you might have to make a marital status claim using a sex- or gender-based argument, and you would have to potentially pursue the veteran discrimination claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is a separate statute with a separate complaint and adjudication process. You would have to pursue state-level anti-discrimination processes to use the “extra” protected statuses, and the efficacy of those processes can vary substantially by state.
Nexus Requirement
The second component of tying the HWE to a protected status is critical. Absent this “nexus” component, a claim of harassment or HWE will not survive scrutiny under the federal EEO process. That means that abusive work environments which are not based on any of the protected statuses cannot properly be claimed as a “hostile work environment” under these workplace laws, even if they are based on, e.g., intense personal animus or egregiously targeted and arbitrary adverse action. While such situations could be remediable via other processes, such as the Office of Special Counsel (OSC) if you are a federal employee, or via other state protections, it is important to keep in mind that private companies generally enjoy “at will” employment protections. This means they are allowed to fire or otherwise take adverse action against an employee for any reason or even no reason, as long as it is not a discriminatory reason based on these protected statuses. And for federal agencies, arbitrary or otherwise unsupported personnel action could be appealable to the Merit Systems Protection Board (MSPB) or reported to OSC, but it is not independently an EEO claim.
Subjective Versus Objective HWE
The EEOC necessarily follows Supreme Court precedent regarding these legal issues. In 1993, the Supreme Court laid out a framework for HWE claims, including with the “severe or pervasive” standard. In that same seminal case, Harris v. Forklift Systems, Inc., the Court also imposed a two-pronged standard for deciding when a work environment is sufficiently “hostile:” it must be both subjectively hostile and objectively hostile.
Objective Hostility
Objective hostility uses the classic legal hypothetical of “reasonableness:” would a “reasonable person” find the work environment objectively hostile or abusive? If not, the claim may not be actionable regardless of what the employee subjectively believes. Because this determination is not made by a complainant themselves, it is worth considering whether a neutral decisionmaker (i.e., a judge or jury) is likely to find that an average, rational person in the employee’s position would find the work environment hostile and/or abusive.
Subjective Hostility
Subjective hostility means that the employee must subjectively believe and perceive the workplace to be hostile and abusive before a HWE claim is valid. This may seem silly—why would somebody claim HWE if they don’t personally consider it hostile or abusive?—but that is the point here: you cannot claim HWE if you don’t personally find the environment to be hostile or abusive, even if a reasonable person would and the only reason you don’t is because you don’t mind it. In other words, you cannot receive a windfall just from being willing to put up with something that a hypothetical “reasonable” employee would find to be objectively hostile.
Together, this means that an unreasonably sensitive person cannot claim HWE over a situation where a reasonable person would not mind, and likewise, an especially stoic person cannot claim HWE without actually perceiving the hostility or abuse as harmful to themselves or their employment. Both subjective and objective hostility must be present.
Further Considerations
Alongside satisfying the “severe or pervasive” standard, demonstrating both subjective and objective hostility, and showing how the problematic actions were based on or motivated by one or more protected statuses, HWE cases often involve even more granular analyses. For example, was the conduct “unwelcome?” How should this be argued in a case with a wide range of allegedly discriminatory and harassing conduct? What if a separate incident is also part of a broader pattern? These issues can get complicated very quickly, which is why experienced representation can be an especially beneficial asset in pursuing a HWE claim.
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Although the umbrella concept of “harassment” can include HWE and “regular,” perhaps more isolated harassing conduct by an employer, there are various stages of the EEOC complaint, investigation, and adjudication processes during which presenting the claims properly can be critically important. Even if a mistake can be rectified later in terms of a claim’s phrasing, a complainant misunderstanding and mis-alleging an EEO-related harassment claim can cause problems with how the complaint is processed, investigated, and ultimately adjudicated. As a result, the distinctions between HWE and “other” harassment are helpful to know from the very beginning, and knowledgeable legal counsel can help tailor how your claims are presented in order to achieve the best possible outcome for your case.If you are seeking representation before the EEOC, you can contact us via our website, www.berrylegal.com, or by phone at (703) 668-0070, to arrange for an individual consultation.
