Recently, an employee was awarded $450,000 after experiencing an unwelcome workplace interaction, then being terminated days later.
The incident? An unwanted birthday celebration.
The employee suffers with an anxiety disorder and, as a result, asked his manager to forgo the workplace’s traditional birthday parties for his big day.
When his colleagues ignored the request, he experienced a panic attack and retreated to his car where he texted his manager that he was upset that he hadn’t been accommodated.
A few days later, the employee was terminated due to his negative reaction to the party. He then filed a lawsuit against his former employer and won.
This person’s employer could have saved time, money, and stress had they simply listened to their employee.
Instead, they created a hostile work environment for him, aggravated his mental health condition, and, worst of all, punished him for standing up for himself.
But does this actually qualify as a hostile work environment? What should you do if an employee thinks your workplace is unaccommodating? How can you prevent toxic behavior in your organization? This guide explains everything you need to know to protect both your employees and your organization.
The Legal Dictionary formally defines hostile work environment as “unwelcome or offensive behavior in the workplace, which causes one or more employees to feel uncomfortable, scared, or intimidated in their place of employment.”
In other words, a hostile work environment is the sum of actions, communications, or behaviors from someone in the workplace (e.g. colleague, manager, client, vendor, customer) that alters the terms, conditions, or expectations of a comfortable workplace for an employee. And there are legal consequences for the employer.
Contributing factors to a hostile work environment include:
- Harassment or bullying (e.g. ridicule, name-calling, unwanted touching, offensive comments)
- Toxic competition
- Lack of psychological safety
Not sure what qualifies as unwelcome behavior?
Download this free cheat sheet to learn examples of 11 common types of workplace harassment.Get the Cheat Sheet
What is NOT a Hostile Work Environment?
A common misconception is that a hostile work environment is a place that’s generally unpleasant.
A bad boss can drain morale. A lack of perks is inconvenient. A loud coworker is obnoxious. Feeling overworked, underpaid, or generally unhappy is sometimes a reality.
Treating staff and colleagues badly makes little business sense and will drive away remarkable employees, but it’s not illegal.
For a work environment to be illegally hostile, it needs to go beyond minor inconveniences, rude comments, or a clash of personalities. It must be disruptive enough to impact the employee’s work.
So, when does a hostile environment at work cross that line from legal to illegal?
It’s hard to define exactly when a hostile environment becomes illegal because judges must consider many unique factors. There are three main complicating issues:
- Cases of hostile work environments are extremely subjective and fact-specific. This means it’s usually one employee’s word over another’s regarding an incident.
- There’s rarely a piece of evidence that clearly proves the claims, such as an admission of guilt or a clear video or audio recording of the incident.
- Because there’s no smoking gun, the case is proven through the sum of the circumstances. The courts consider all aspects of the situation, including the frequency and severity of the hostile behavior.
The court looks at each behavior or act individually to determine whether the overall situation is hostile enough to require some form of legal action. For example, one snide comment from a coworker having a bad day might not create a hostile workplace, but nasty remarks every day probably would.
For the behavior to be ruled illegal, it’s likely:
- Discriminatory in nature
- Unwelcome (of course)
1. It’s Discriminatory
Title VII of the Civil Rights Act (1964) protects employees from work-related discrimination based on certain protected classes.
These classes include:
- National origin
- Sexual orientation
- Physical and/or mental ability
In the birthday party example, the employee disclosed that he had a mental health condition. By not accommodating this illness, the employer discriminated against him under the ADA, so he was free to file a lawsuit.
Discrimination can take extreme forms such as passing a qualified employee over for promotion or not giving them credit for their work. However, it might be more causal, such as discriminatory comments played off as a joke.
No matter what it looks like, discrimination creates a hostile atmosphere for the victim, where they feel unsafe and disrespected by their colleague and/or employer.
If this behavior violates any of the legislation above, the employee can pursue legal action.
Limitations to Title VII
- The rules don’t apply to all employers. Title VII does not apply to small businesses (those with 14 or fewer employees), Tribal nations, private member clubs exempt from taxation, and religious organizations (for certain employees).
- There is a statute of limitations for filing a claim under Title VII. An employee has up to 180 days (six months) from the date of the last discriminatory act to file a charge with the EEOC. However, the employee has up to 300 days or more to file if a state or local law also prohibits employment discrimination. Find out the statute of limitations in your state here.
2. It’s Pervasive
In most cases for a hostile work environment to be illegal, the actions that create the hostility are pervasive and long-lasting. This means the employee is subjected to a pattern of behavior, not one or two unpleasant incidents.
An example of this in recent news comes from Activision Blizzard, where one female employee allegedly was subjected to sexual comments and unwanted touching, and pressured to drink alcohol by male superiors, starting her first day on the job.
In extreme situations, though, severity outranks longevity. In these cases, a single event is enough to create a hostile environment. Examples of this might include sexual assault or an act of physical violence.
Often though, the continuous and all-encompassing nature of a hostile work environment is what sets it apart from the unexceptional (and mostly legal) workplace bullying.
A court will use objectivity to measure pervasiveness by asking:
- Would any ordinary employee in similar circumstances find that this behavior creates a hostile work environment?
- Does the behavior affect the employee’s ability to work to their usual capacity?
- Is the employee experiencing negative physical or mental symptoms because of the hostile work environment?
3. It’s Severe
Behavior that creates a hostile work environment needs to be objectively severe to warrant legal action. The actions, behavior, or communications of a person in the workplace must seriously disrupt and negatively affect the employee’s work.
Severity can be gauged in a number of ways, depending on the victim. For instance, the stress of working in a hostile environment might cause them to:
- Avoid the workplace (e.g. call in sick a lot, work remotely more often)
- Underperform (e.g. miss deadlines, forget meetings, produce lower-quality work)
- Change their personality (e.g. act sad, lash out in anger, make rude comments, withdraw from coworkers)
Severe is subjective, though, which makes the situation difficult to assess. An important distinction is that the law isn’t meant to protect against casual teasing, blunt comments, or minor, isolated incidents.
4. It’s Unwelcome
Like all forms of misconduct, inappropriate behavior, and harassment, the incident needs to be unwelcome to be considered hostile.
This means that the victim must find it offensive, unpleasant, or inappropriate. In addition, unwelcome behavior negatively affects the employee’s well-being, whether that’s physical, emotional, psychological, or a combination of all three.
Typically, the victim needs to provide some form of proof that they asked the hostile individual to stop. They could have filed a formal report to HR or have an email they sent to the person confronting them about their behavior.
If the hostility continued after a confrontation, this is a surefire sign that the conduct was unwelcome.
Encourage employees to speak up when they experience misconduct.
In your whistleblower policy, explain that reporting wrongdoing is essential to an ethical workplace. Remind employees that they’ll be protected from retaliation, too. Start writing your policy with our free template.Get the Template
5. In Some Cases, It’s Large-Scale
Large-scale bullying that creates a hostile work environment may also be valid in court due to the 1935 National Labor Relations Act (NLRA).
Employee rights are protected by the NLRA, including the ability to curtail private sector labor and management practices.
Section 7 of the NLRA says that:
“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
This means that employees of privately-owned companies have additional rights encouraging them to address unethical, unsafe work conditions. And, if they do so, they are legally protected against retaliation.
Four Questions to Ask
Often, when the employee/victim wins a hostile work environment lawsuit, four factors were present.
Consider the incident or issue your organization is facing. Analyze the situation and ask:
- Were the incidents unwelcome?
- Were the incidents discriminatory towards a protected class?
- Did the incidents occur repeatedly over a period of time?
- Was the incident both objectively and subjectively hostile?
If the answers to these are all “yes,” you might be at risk of a lawsuit.
Let’s consider a simple 1:1 hostility: When Joshua is off making sexist comments towards Kathy, productive work time is lost for both employees.
Not only that, but Kathy might take stress leave, use sick days to stay home and avoid the bully, file a workers’ compensation claim, or even feel pushed into resignation.
A recent study calculated that a company with 1,000 employees could lose $1.2 million a year due to the absenteeism and turnover caused by toxic employees.
On top of that price, you could face litigation costs and regulatory penalties.
Employee decides to file an EEOC complaint and/or lawsuit? You could pay thousands of dollars to handle it, plus time and stress.
If your organization is found to be non-compliant with a law like the ADA, you might have to pay hefty fines, not to mention the costs of cleaning up your public reputation afterward.
According to a study conducted by Rand Corp., Harvard Medical School and the University of California, nearly one in five employees have been exposed to a hostile work environment.
This includes things like verbal abuse, sexual harassment, slurs, humiliating behavior, and bullying.
There is a series of trends that seem to arise from studies like these.
Less educated workers, those who deal directly with customers, and younger workers are more likely to experience harassment at work.
Men are generally more likely to experience verbal abuse, while women are more likely to experience unwanted sexual attention in the workplace.
Nearly 35 per cent of men under 35 without a college degree report experiencing some type of harassment, abuse, or violence in the workplace, making them the most targeted group.
Certain industries and career paths are more affected as well. Healthcare professionals, especially nurses, experience a great deal of hostility from stressed-out patients and even their colleagues.
Industries that are fast-paced, competitive, and/or male-dominated can attract certain (often hostile) personalities. Examples of this in recent news include technology companies (Google), entertainment (The Ellen DeGeneres Show), financial services (Goldman Sachs), and law firms (Community Environmental Legal Defense Fund).
Before widespread social media use, hostile work environments were confined to the physical workplace. Now, employers and employees have to deal with online interactions as well, making the hostile work environment practically inescapable.
Social media platforms provide opportunities for self-expression, unfortunately including harassment, discrimination, hate speech, and other unsavory, unwelcome comments.
According to the Anti-Defamation League, 41 per cent of Americans have experienced some type of online harassment. As the boundaries between our work and personal lives blur, it’s likely that many of these victims are targeted by their coworkers.
These incidents not only harm the victim, but can also harm your company’s reputation, and even invite a lawsuit if you don’t treat them with care.
To better protect your company from social media harassment claims (and keep employees safe), implement a thorough social media policy. Your policy should include:
- What is and is not acceptable social media post content
- Who can post on behalf of the organization, such as on the corporate social media accounts
- Disclaimer wording employees can add to their profiles (i.e. “Views my own” or “My posts do not reflect my employer’s opinions”)
- Consequences of violating the policy
Some employees might feel emboldened online when they would never harass a colleague in the office. Remind your staff that the consequences of negative behavior is the same whether it took place online or offline. Manage and investigate social media harassment the same way you deal with in-person harassment.
Finally, require social media training for all employees. Outline the details of your policy, using examples to illustrate unacceptable behavior. Tell employees how and where they can report an incident if they’re the target of online harassment, too.
A social media policy can do more than prevent harassment between colleagues.
To ensure your policy includes everything you need to prevent employee issues and PR nightmares, download this free social media policy checklist.Get the Checklist
If you receive a complaint of a hostile work environment, take it seriously. If the complainant feels that their employer mishandled their report and forced them to continue working in a stressful environment, they could file a lawsuit.
Employees should be given the opportunity to report any issues they’re having with other colleagues, and they should feel confident that their complaint will be taken seriously.
- Develop an internal complaint system that employees feel comfortable using, preferably with multiple reporting options.
- Train managers, supervisors, and the HR team to detect and resolve hostility at work.
- Use an effective complaints management system, such as case management software, to resolve issues faster.
Protect both the victim and your organization by looking into the issue before it escalates.
Is an Employee the Problem?
Does the complainant have issues with one or two coworkers in particular?
Start by interviewing both the reporter and the alleged harasser(s) to gauge the situation. In many cases, the offending employee doesn’t know that their behavior has offended the victim.
Explain to the harasser that the victim felt the harasser’s behavior was offensive, inappropriate, or discriminatory. Express that the behavior made someone else uncomfortable, even if they didn’t have malicious intent.
Finish by telling them that the behavior will not be tolerated in your organization. With each incident, check that your harassment training is up to date with best practices and your company’s ethical standards.
Issues like these are relatively simple to resolve. If possible, get the two employees together to resolve the problem quickly and fairly using Alternative Dispute Resolution techniques such as mediation or arbitration.
Along with training and strong policies, you can prevent a hostile work environment by building ethics into your company culture. When employees are encouraged to behave ethically in all aspects of their job, they’ll be less likely to sully a coworker’s workplace experience.
Is Your Organization the Problem?
In some organizations, the company culture is a hostile work environment for some employees.
If hostile conduct is being encouraged by senior-level staff, the best way to approach the situation is to overhaul your culture by assessing current policies, procedures, and standards.
To encourage change:
- Implement bullying, harassment, and discrimination training
- Implement special training for managers on helping their employees if they’re victimized and avoiding hostile behavior themselves
- Build and strengthen coworkers relationships through team-building events
- Develop strict policies and guidelines concerning behavior at work (such as a Code of Conduct)
- Enforce these policies consistently
- Updating your company’s vision, mission, and values to include ethical behavior
- Hold your company accountable to your ethical standards by sharing them publicly on your website
- Survey employees to uncover problem areas within your organizational culture
- Use case management software to track, manage, and investigate incidents efficiently
What’s the Best Way to Stop Hostility at Work Right Now?
First, nip it in the bud.
The Department of Labor found that the most effective way to reduce harassing and hostile behavior is to categorize it as misconduct.
What begins as one rude comment or lewd joke can lead to a situation that negatively affects not just the victim, but the entire workforce. Eliminate the behaviors before they become severe and long-lasting enough to violate the law.
By doing so, you’ll earn a reputation as a caring employer and avoid lawsuits from disgruntled employees and non-compliance fines from regulatory bodies.
Second, remember that culture starts at the top. Encourage senior managers to set good examples for workplace conduct, rather than behaving like “brilliant jerks.”