A hostile workplace is created when someone in the workplace engages in conduct or communications that is severe, offensive and unwanted and generally pervasive and ongoing. This type of behavior rises above petty insults, annoyances, and ill-timed horseplay. The behavior must be such that it interferes with the victim’s ability to work.
The key word is “hostile,” and that will typically include behavior targeting a person based on some legally protected characteristics under Title VII of the Civil Rights Act of 1964.
These include characteristics such as race, gender, disability, age or sexual orientation. Some examples of common workplace harassment involve the use of racial slurs and sexually charged comments, display of pornographic materials, and demonstration of other workplace bullying behavior.
How Can I Prove I Have Been Harassed in the Workplace?
The facts can be difficult to establish because the offensive incident(s) typically just involve the plaintiff and the defendant. Regardless, it is important that you document each incident of harassment and keep records of your report to management about the offensive behavior. Also, if you seek medical attention due to the hostile work environment, be prepared to produce those records as well.
Additionally, you can seek to establish a hostile work environment by using the following:
- Witness testimony, which may include additional reports from similar victims that establish a pattern of hostile behavior in the workplace;
- A copy of the employee policy handbook that describes what is considered inappropriate behavior in the workplace. The handbook can also show whether the employer has procedures in place to respond to harassing behavior; this in turn provides evidence that the employer failed to follow its own procedures.
Can an Employer Be Held Liable for the Behavior of an Employee?
Courts are prepared to find a business liable for creating a hostile work environment based on the behavior of an employee. The court will look at whether the supervisor:
- Had actual knowledge of the employee’s harassing behavior;
- Could reasonably have learned about the harassing behavior;
- Failed to take action or address the complaints of a hostile work environment; and
- Adversely acted against the employee who complained about the harassing behavior.
Based on the foregoing, it is clear that even though an employer may have an anti-harassment process in place, the employer still may be found liable for a bad employee’s behavior. An employer may assert that it didn’t know or had no reason to know of the hostile workplace because the employee failed to go through the proper reporting procedure.
However, if the facts establish that the appropriate personnel were otherwise aware of the complaints or had reason to know of the employee’s harassing conduct, the court may still find in favor of the victim. Note also that the employer may be held liable for the acts of independent contractors and customers under the same standard.
What Types of Remedies Can I Seek for a Hostile Workplace Claim?
There are a wide variety of options available to remedy a hostile workplace claim. These include:
- Terminating or demoting the employee or supervisor;
- Requiring that the employee attend harassment training;
- Awarding damages and expenses (medical expenses, emotional distress, lost wages, etc); and
- Mandating changes to the company’s harassment policy.
Where Should I File My Claim for a Hostile Work Environment?
Most of the above damages can be awarded in a civil lawsuit or Equal Employment Opportunity claim. However, if the behavior constitutes a criminal offense (the harassment included a physical assault or battery, for example), there may be criminal fines and jail time involved.
Some states will require that you exhaust your administrative claims first, meaning that you will have to first seek relief through the Equal Employment Opportunity Commission (EEOC) before you can file a lawsuit in court.
To establish your EEOC claim, you must show that the harassment violated some legal standard, such as the Civil Rights Act, the Age Discrimination in Employment Act, or the Americans with Disabilities Act.
The harassment must also include severe and pervasive conduct that any reasonable person would consider abusive, intimidating or hostile. You also may file a claim if you are being harassed in retaliation for filing or reporting discrimination under these laws.
What Can Employers Do to Avoid a Hostile Work Environment Claim?
Often an employee’s behavior gives rise to a hostile work environment claim because the victim’s reporting of such behavior is ignored or not taken seriously. Therefore, in the first instance, supervisors can prevent these types of claims by paying attention to harassment complaints and responding promptly.
Additionally, the employer can anticipate such complaints by conducting periodic harassment training, performing regular review of its harassment policies, and establishing a record of enforcing harassment policies consistently.
Should I Hire an Attorney If I Have a Hostile Work Environment Issue?
Everyone is entitled to work in an environment free from hostile, intimidating or abusive behavior. If you are the victim of a hostile work environment, you may wish to consult with an employment law attorney to help you understand your rights.