Hostile Working Environment

Hostile Working EnvironmentA hostile working environment is an evolving theory of discrimination that derives from various federal antidiscrimination statutes that prohibit discrimination in employment on the basis of race, religion, color, sex, national origin, disability, or age (for persons 40 years and older). This theory recognizes that it is discriminatory for an employer to subject an employee to working terms or conditions that are hostile or abusive to him or her because of one (or more) of these characteristics. As a developing area of law, courts continue to refine the legal principles that shape our understanding of hostile work environment claims. In response to the guidance offered by the courts, employers are increasingly making efforts to educate their employees about the kinds of behaviors that may create a hostile or abusive work environment and the measures that can be taken to prevent and address such claims. Indeed, an employer who tolerates a hostile work environment can be held liable for compensatory and punitive damages, and there are other remedies available under the respective federal statutes for this form of discrimination.

Most notably, the concept of a hostile work environment as a form of discrimination garnered national attention in 1991 during the U.S. Senate confirmation hearings for Associate Justice of the U.S Supreme Court Clarence Thomas. At those hearings, Anita Hill testified about sexually harassing conduct allegedly engaged in by nominee Thomas during the time they had worked together at two federal agencies. Although Justice Thomas was ultimately confirmed to the Court, the hearings spawned an almost immediate rise in the number of sex discrimination complaints filed against employers, based on claims of sexual harassment in its myriad forms, including claims of a hostile work environment.

From a legal perspective, hostile work environment claims based on sex have received significant attention by the federal judiciary in recent years, prompting a spate of decisions by the U.S. Supreme Court that address issues raised by this developing theory of discrimination. The standards established by the Court in these decisions apply to hostile work environment claims based not only on sex but also on other characteristics protected from discrimination by federal statutes, including race, religion, color, national origin, disability, or age (for persons 40 years and older). Because of the influence and prevalence of sex-based hostile work environment claims, the following discussion will focus on this category of claims for purposes of illustrating the concepts essential to understanding this form of workplace discrimination.

As most commonly invoked and understood, a hostile work environment based on sex discrimination is an unlawful form of discrimination, rooted in the broad prohibition against sex discrimination in employment Title VII of the Civil Rights Act of 1964. Specifically, Title VII makes it “an unlawful employment practice for an employer…to discriminate against any individual with respect to his [or her] terms, conditions, or privileges of employment, because of such individual’s sex.” The Equal Employment Opportunity Commission (EEOC), the federal administrative agency responsible for implementing and enforcing Title VII, has long held that sexually harassing conduct violates an individual’s right to working terms and conditions free from sex discrimination. Consistent with this position, the EEOC conceptualizes sexual harassment as a form of sex discrimination in one of two ways: quid pro quo sexual harassment or hostile work environment sexual harassment. Quid pro quo (literally meaning “this for that”) sexual harassment exists when a subordinate employee suffers a tangible employment action for refusing to submit to a supervisory employee’s sexual demands or proves that an employment decision itself changed the terms or conditions of employment. For example, quid pro quo harassment arises when an employee is fired or denied a promotion for rebuffing a supervisor’s request for sexual favors. Most of the early sexual harassment cases were framed and analyzed by the courts as quid pro quo claims.

By contrast, hostile work environment sexual harassment arises when an employee’s working conditions are altered discriminatorily because of that employee’s sex without resulting in a tangible job detriment. For example, a hostile work environment exists when a workplace is permeated with discriminatory intimidation or ridicule or insult perpetuated by a supervisor or coworkers that makes it more difficult for an employee to do his or her job. In 1986, the U.S. Supreme Court, in Meritor Savings Bank, FSB v. Vinson, recognized that a hostile work environment based on sex perpetuates inequality in the workplace and violates Title VII. Since Meritor, an evolving body of law has emerged from Supreme Court decisions as well as decisions from lower federal courts. These decisions attempt to provide guidance to employers who are committed to creating discrimination-free workplaces and avoiding lawsuits based on claims of a hostile work environment.

Consistent with Congress’s intent to eradicate the entire spectrum of sex discrimination in employment, Title VII’s protection against a hostile work environment extends both to women and to men. Courts now recognize that a hostile work environment, initially the subject of dispute, can result from discriminatory conduct perpetrated by members of the same sex as well as by members of the opposite sex. In its 1998 decision in Oncale v. Sundowner Offshore Services, Inc., the Supreme Court held that a male employee could state a claim for a hostile work environment created by male supervisors and coworkers in his workplace. Offering further guidance, the Court explained that a woman could conceivably create a discriminatorily hostile or abusive work environment for another woman through conduct that makes it clear that the alleged harasser is motivated by hostility toward the presence of other women in the workplace. The Court emphasized the importance of the context and impact of the conduct on the employee who is experiencing the behavior, rather than the sexual identity of the alleged perpetrator.

Because each work environment is unique and human behavior is as varied as the employees in a particular workplace, courts have not attempted to provide an exhaustive list of behaviors that would automatically create a hostile environment. Instead, courts have crafted some guiding principles that can inform an employer’s understanding of the circumstances that are likely to be recognized as creating a hostile work environment in violation of Title VII. These principles are intended to help distinguish between the sort of inappropriate or uncivil workplace conduct that from time to time occurs (and does not give an employee the right to sue for discrimination) and conduct that is “sufficiently severe or pervasive” so as to alter an employee’s working conditions because of his or her sex. Emphasizing this distinction, the Supreme Court has made it clear that conduct that is “merely offensive” does not violate Title VII (or, by inference, any other antidiscrimination statute). On the other hand, an employee does not need to prove psychological harm resulting from exposure to the hostile or abusive workplace.

To ensure a degree of objectivity, the alleged discriminatory conduct must be viewed through the prism of a reasonable person. In other words, an employee who alleges a hostile work environment must prove that he or she perceives the environment to be hostile or abusive and that a reasonable person also would perceive the environment to be hostile or abusive. In Harris v. Forklift Systems, Inc. (1993), the Supreme Court noted that some relevant factors to consider include the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct contains a physical component, and whether the conduct unreasonably interferes with an individual’s ability to do his or her job. Overarching this inquiry is the need to take account of “all the circumstances,” including the broader social context in which the behaviors are occurring.

An example given by the Supreme Court in Oncale v. Sundowner Offshore Services, Inc., highlights the critical role that context plays in evaluating hostile-work-environment claims. Rather than emphasize the conduct itself, the Court focuses on the context in which the conduct occurs. It suggests, for example, that a reasonable person would understand that a distinction exists between the coach smacking a football player on the buttocks as he runs onto the football field before a game and the coach smacking his assistant on the buttocks back at the office. The inference is that the former action would be perceived as one of competence and confidence building (and would not be experienced as sex discrimination), whereas the latter action, in an office setting, would be perceived as demeaning and competence and confidence undermining (and would be experienced as sex discrimination). The contextual distinction in which the same conduct occurs makes all the difference.

As a practical matter, hostile-work-environment claims typically are based on a collection of behaviors and incidents that alter the workplace because of the employee’s sex. Although the Supreme Court has indicated that one incident, in general, will not be sufficiently “severe or pervasive” to create a hostile work environment, it is possible to state a successful claim in which an employee alleges one incident that involves physical conduct or conduct that makes it virtually impossible for the employee to demonstrate competence and carry out the job requirements effectively in the future. In its narrowest construct, courts generally recognize the following kinds of overt sexual actions when “severe or pervasive” as sufficient to create a hostile workplace: sexist jokes or epithets, sexually explicit photographs or images, sexual gestures, and other conduct of a sexual nature. In addition, a growing number of courts are recognizing that nonsexual conduct that undermines an employee’s competence or makes it more difficult for an employee to perform the job or to advance in the company because of the employee’s sex also may create a discriminatorily hostile work environment. The courts are acknowledging that Title VII’s goal of workplace equality can be undermined by nonsexual as well as sexually overt actions that reinforce gender stereotypes or have the effect of differentiating the workforce along gender lines.

Employers who tolerate hostile workplaces created by supervisory employees can be held vicariously liable for the actions of the supervisors. An employee who wins a hostile-work-environment claim may be awarded equitable relief as well as compensatory and punitive damages under Title VII (subject to a maximum cap of $300,000, depending on the size of the company). To motivate each employer to guard against a hostile work environment, the U.S. Supreme Court has recognized an affirmative defense to allow an employer to avoid vicarious liability when it shows that (a) the employer has taken reasonable care to prevent and promptly correct any sexually harassing conduct and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. In response, employers are increasingly making efforts to educate their employees about the kinds of behaviors that may create a hostile or abusive work environment and the mechanisms internal to the company for addressing such claims. Case law provides some insight into the practical and proactive steps an employer might take to meet its duty and avail itself of the defense. Because an employer can also be held liable under a negligence standard for hostile work environments created by coworkers, these same preventive measures likely will serve an employer well if it is sued under these circumstances.

As an initial matter, an employer should publish and communicate to its employees a specific policy against sexual harassment (including claims based on a hostile work environment). Many companies provide training or other opportunities for employees to become more familiar with the concept of sexual harassment, the company’s policy against sexual harassment, and the company’s process for reporting and handling complaints or concerns about sexual harassment. In addition, to ensure that the policy is effective, an employer should implement a process for receiving and promptly investigating claims of sexual harassment. It is critically important that the process be designed in a way that encourages employees to report their complaints. Toward that end, the process must be accessible to employees and designed to lead to a resolution. Employers often create structures that authorize several alternative personnel to receive internal complaints alleging sexual harassment. This approach serves two purposes. It minimizes the likelihood that an employee will choose not to report the claim because he or she is uncomfortable sharing potentially sensitive and intimate behaviors with a particular member of management. It also prevents a situation in which the only person designated to receive complaints is the very individual alleged to be the perpetrator of the discriminatory conduct, such as the employee’s supervisor.

During the course of the investigation, the company needs to protect the rights and interests of all parties, including the alleged harasser. If the investigation is not conducted with the appropriate level of confidentiality, the company could face a defamation lawsuit by the alleged harasser. Finally, based on the results of the investigation, an employer must remedy the situation promptly and effectively. At a minimum, the employer must stop the harassing conduct and minimize the risk of the behavior recurring. Here again, no specific guidelines exist except to recognize that any discipline imposed should not punish the alleged victim and should ensure that the discriminatory conduct has ceased and will not be repeated.

In recent years, employers have increasingly begun to adopt a zero-tolerance approach toward incidents of sexual harassment. Although no uniform definition exists, the concept of a zero-tolerance policy seems to imply a certain degree of rigidity with respect to the tolerance for incidents of sexual harassment and the consequences to individuals involved in the harassing conduct that has created the hostile work environment. Further empirical research, however, needs to be conducted to determine the overall effectiveness of zero-tolerance policies in light of the goals of Title VII.

Like any new legal theory, the standards applicable to claims of discrimination based on a hostile work environment will continue to evolve as courts develop more experience with these kinds of cases. Similarly, employers likely will continue to develop policies and practices designed to eradicate behaviors and climates that can create working environments that employees might experience as hostile or abusive on the basis of race, religion, color, sex, national origin, disability, or age (for persons 40 years and older). In the end, the overall goal of these developments must be to ensure that all employees enjoy the statutory right to pursue employment opportunities in workplaces free from discrimination.

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  1. Beiner, T. M. and DiPippa, J. M. A. 1997. “Hostile Environments and the Religious Employee.” University of Arkansas—Little Rock Law Journal 19:577-641.
  2. Faragher v. Boca Raton, 524 U.S. 775 (1998).
  3. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
  4. Johnson, M. W. 2004. “Harassment and Discrimination Prevention Training: What the Law Requires.” Labor Law Journal 55:119-129.
  5. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).
  6. Mesritz, G. D. 1997. “Hostile Environment Sexual Harassment Claims: When Once Is Enough.” Employee Relations Law Journal 22(4):79-85.
  7. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
  8. Schultz, V. 1998. “Reconceptualizing Sexual Harassment.” Yale Law Journal 107:1683-1805.
  9. Stockdale, M. S., Bisom-Rapp, S., O’Connor, M. and Gutek, B. A. 2004. “Coming to Terms with Zero Tolerance Sexual Harassment Policies.” Journal of Forensic Psychology Practice 4(1):65-78.
  10. Tomkowicz, S. M. 1997. “Beyond a Reasonable Accommoda­tion: Hostile Work Environment Claims under the ADA.” Employee Relations Law Journal 23(3):97-109.