As an employee, you should be able to perform your job and duties in a healthy work environment. However, many people suffer from hostile work environments, which may severely impact their ability to perform their job duties. In short, a hostile work environment is created when anyone in the workplace engages in a type of harassment that makes it impossible for an employee to perform their job duties. 

This type of harassment generally includes unwelcome comments or conduct based on race, color, religion, sex (including pregnacy), national origin, age (40 or older), disability, genetic information, or any other legally protected characteristics that may unreasonably interfere with an employee’s work performance. 

Hostile work environments may be created by a coworker, a supervisor or manager, repeat clients, vendors, visitors, contractors, or other employment staff which have significant contact with an employee. It is important to note that not every isolated incident, petty slight, or annoyance will cause a work environment to rise to the level of illegality. 

However, if you are in a situation where you have been subjected to offensive and unwelcome conduct that has affected the terms and conditions of your employment, you may be able to sue your employer for harassment for a hostile work environment. 

What Qualifies as a Hostile Work Environment?

A hostile work environment can present itself in a variety of ways. From sexual remarks/harassment to creating an environment of fear and intimidation. What qualifies as a hostile work environment will vary from workplace to workplace.

For an extreme example, let’s say the workplace is a tattoo parlor and an employee feels like the environment is hostile because of patrons and other employees are walking around without a shirt or pants (due to the fact they were being tattooed).

Given the nature of the workplace, it is unlikely that the employee would be able to argue that they are in a hostile work environment when the very nature of the job will require people to remove some of their clothing. If the employee doesn’t like a tattoo, maybe a tattoo they find offensive, it will most likely be considered something that the employee should have known about. It would be unreasonable to suddenly expect the workplace to change to fit the needs of this employee.

But if the workplace is an office setting and employees walk around shirtless and reveal offensive tattoos, then it is more likely that the employee can argue that this is creating a hostile work environment if they are so affected by the situation that they cannot work. Especially if they began doing this in the office simply to intimidate or make the employee uncomfortable.

What are Hostile Workplace Laws?

The requirements that you need to meet in order to bring a successful lawsuit based on a theory of a hostile workplace differ based on where your bring your lawsuit. You may file a lawsuit against your harasser based on a hostile workplace either in federal or state court. 

Federally, The United States Equal Employment Opportunity Commission (“EEOC”) is the federal agency responsible for enforcing federal laws against workplace discrimination based on a person’s race, color, religion, sex, national origin, age, disability, or genetic information. 

Thus, the EEOC was essentially created to help resolve issues regarding workplace discrimination, including hostile workplaces. Generally, when it comes to suing an employer based on a theory of a hostile workplace, you must be able to prove the legal requirements of a hostile work environment. When the EEOC investigates a workplace to determine whether a work environment is hostile, they typically make an assessment based upon the following legal elements:

Type of Conduct: The EEOC will look at whether the harassing conduct was verbal, physical, or both. Physical threats or intimidation will result in higher penalties for the harasser;

Frequency of Harassment: The EEOC will also look at the frequency of the harassment. The EEOC will look to determine whether the conduct has become a pervasive and long lasting problem, rather than a simple isolated incident. Simple isolated incidents generally do not meet the requirements of creating a hostile work environment, unless they are extremely serious; 

Discriminatory Intent: In order to succeed on a hostile work environment claim federally, you must be able to demonstrate discriminatory intent. This means that the harassing behavior must be discriminatory against a person’s race, color, religion, sex (including pregnacy), national origin, age (40 or older), disability, genetic information, or any other categories legally protected by the EEOC;

Employer’s Response: The EEOC will also investigate as to the response the employer and senior management made when they became aware of the harrassing situation, such as whether they took steps in correcting the problem immediately. If an employer was aware of the situation, but failed to further investigate, intervene, or otherwise address the issue, they will likely be more liable for the hostile work environment. 

Because of this element, employees are encouraged to inform the harasser directly that their conduct is unwelcome and must stop. Furthermore, employees should also report harassment to management at an early stage. This will help prevent escalation of the hostile work environment and give management an opportunity to address the issue; and

Effect of Harassment on Employee: As noted above, the hostile work environment and harassment must be so severe or pervasive that a reasonable person would consider the work environment to be intimidating, hostile, or abusive. Generally, this means an employee’s desire or ability to perform their job duties has been greatly affected. 

In addition to federal protections against hostile work environments, your local jurisdiction or state may also have laws or agencies that regulate workplace harassment and discrimination. Therefore, it is important to research whether you should bring your lawsuit, if necessary, in state or federal court. 

How to Prove a Hostile Work Environment?

As noted above, as an employee you should inform your harasser directly that their conduct is unwelcome and must immediately stop. Additionally, you should immediately report any hostile work environment situation to your supervisor or management, in order to allow them to address the situation and prevent it from escalating. This means that you should communicate with your HR Department immediately regarding the hostile work environment. 

Further, you must be able to prove all of the legal requirements mentioned above in order to have a successful claim of a hostile work environment. It is important to keep records of communication that you have made to management regarding the hostile work environment, as it is important to have evidence should any legal action arise. The best form of communicating with management regarding a hostile work environment is by email or in writing, since the conversation will be in a recorded medium.

If you choose to only inform management by phone, you should be aware that there are federal and state wiretapping laws that may limit your ability to record telephone conversation. Federal law generally permits recording telephone calls and in-person conversations so long as at least one of the parties (including yourself) consents to the recording. However, some states require that all parties to the communication consent to any recording. 

Can an Employer be Liable for the Actions of an Employee?

As mentioned above, if an employer became aware of a situation of a hostile work environment, but failed to further investigate, intervene, or otherwise address the issue, they may also be held liable for the actions of an employee. 

Once again, this is why it is crucial to report any situation involving a hostile work environment to management and HR immediately. It may be the difference between receiving a low settlement with your individual harasser, or a greater settlement with your individual harasser and employer. 

What Types of Remedies are Available for a Hostile Work Environment Claim?

If you are able to demonstrate a valid hostile work environment claim, you may be entitled to compensatory damages for any losses that the hostile work environment has caused you to suffer. These damages typically include claims for lost wages, including back pay and benefits, due to the inability to work. 

In cases where the hostile work environment caused you to lose your job, compensatory damages will be awarded to help put you back in the same place you would have been had you not lost your job. The most preferable remedy for courts generally is reinstatement of the employee and termination of the offending employee. 

Additionally, in some rare cases, employers may have to pay punitive damages to the employee, if their employer intentionally engaged in conduct that created a hostile work environment. 

When Should I File My Claim for a Hostile Work Environment?

As mentioned above, the first step you should take if you are experiencing a hostile work environment is to ask the offending employee to cease their behavior or communication immediately. 

If you are not in a situation where this is possible, then you should enlist the help of management or HR in contacting the harasser. After asking the offending employee or employees to cease their behavior, you should also immediately contact management and the HR department to report the issue. 

This is important, because in order for a case to be successful there must be documented evidence that the problem has been reported. Finally, should the situation continue, and a hostile work environment arise, you should contact your local state agency in charge of workplace harassment or the EEOC. They can conduct an investigation of your claim and/or file a lawsuit based on a theory of a hostile work environment. 

Do I Need a Lawyer to File a Claim for a Hostile Work Environment?

Although not a requirement, consulting with a knowledgeable and well qualified employment attorney may still be in your best interests. A licensed and experienced employment attorney will help guide you through the often complicated process of pursuing a claim with the EEOC or your local state agency. 

Further, they will be able to help you gather evidence for your case and represent you in front of a court of law, should you decide to proceed with the lawsuit against your employer.