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How do Employees Prove a Hostile Work Environment?

January 16, 2017

By John V. Berry,

Employees often ask us what constitutes a hostile work environment in the workplace.  The topic can be confusing to many. It is often the case that many employees assume that general bad behavior exhibited by a supervisor or coworker constitutes a hostile work environment claim for purposes of filing an Equal Employment Opportunity (EEO) complaint.  However, an EEO complaint based on hostile work environment must involve actions taken as a result of discriminatory behavior. In other words, a hostile work environment involving a supervisor that is petty, obnoxious, or otherwise horrible to work for, without the element of discrimination as the basis for the conduct, is not necessarily an actionable EEO hostile work environment case.

Employees can and do suffer from an unpleasant work environment for reasons other than unlawful discrimination. While such conduct is inappropriate and unfortunate, it may not always provide a claim for an EEO complaint. In order to show a hostile work environment for the purpose of filing an EEO complaint, employees generally need to show that:

1.    The actions taken were discriminatory or harassing against them based on their race, religion, national origin, gender, age, etc.;

2.    They were subject to harassment (verbal or physical) as a result of the discrimination;

3.    The discrimination is pervasive. In other words, it persists over time;

4.    The hostile behavior is severe; and

5.    The employer knew or should have known about the discriminatory behavior.

The following are a few examples of a hostile work environment:

1.    An employee, who is an older man, age 62, is subject to constant ridicule in the office by his supervisor for work-related mistakes due to his age. His supervisor often makes jokes in front of everyone in the office that “he should retire.” The employee reports the situation to the company’s human resources department, which does not address the issues at all, and the supervisor continues his/her harassing behavior.

2.    An employee, who is Hispanic, is subject to repeated offensive racial comments at work by a supervisor in front of other employees.  She is the subject of racist jokes on a weekly basis.The employee takes the matter to the employer’s CEO who declines to take action, ignoring the complaint. The supervisor feels emboldened and continues his/her discriminatory behavior.

3.    An employee, who is a younger female, is consistently asked out on dates by a male co-worker even though she has politely declined these requests. The employee then begins to receive emails and notes on her office door from the co-worker with inappropriate remarks, continuing to attempt to pursue a relationship.  She reports the harassment to her manager, who takes no action in the matter, and the harassment continues.

The examples of different types of a hostile work environment are too numerous to cite, but the harassing behavior has to involve discrimination based on race, religion, gender, national origin or other protected categories. Again, if a supervisor or co-worker is hostile, mean, or even engages in bizarre behavior, it may not rise to the level of an actionable EEO hostile work environment case.  Additionally, it is important for management to be made aware of the harassing conduct as soon as possible.

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