What are the signs of a hostile work environment?

Hostile work environment is a phrase that employees use all the time.  But what does it really mean? Read on to learn what a hostile work environment is, when it is sexual harassment, and what you can do about it.

What is a hostile work environment?

As a reminder, there are two types of discrimination.  The first occurs when an employer takes an adverse employment action (non-selection, firing, suspension, demotion, etc.) because of an employee’s sex, race, age, disability, or another protected characteristic.  Hostile work environment is the second type of discrimination, which occurs when an employer subjects an employee to unlawful harassment because of an employee’s protected characteristic.  In basic terms, a hostile work environment means harassment.

What are the criteria for a hostile work environment?

Hostile work environment isn’t always illegal.  To have a legal claim for hostile work environment, you must prove:

1. that you are the member of a protected class;
2. that you were subjected to harassment based on the protected class; and
3. that the harassment either
   1. affected a term or condition of employment or
   2. had the purpose or effect of unreasonably interfering with your work environment. 

The harassment was based on a protected characteristic.

Federal laws recognize the following protected characteristics:

• Age
• Color
• Disability
• Genetic information
• National origin
• Race
• Religion
• Sex

In addition, state and local laws may provide more protections.  For example, the DC Human Rights Act prohibits discrimination on the bases of several other characteristics, including marital status, personal appearance, family responsibilities, political affiliation, and gender identity or expression.

You may be able to prove the harassment was based on a protected characteristic if the harassment was clearly related to the characteristic.  For example, displaying a noose in an African American colleague’s workspace is clearly related to race. Making inappropriate sexual comments is clearly related to sex.  But, frequently, the connection isn’t obvious. Many employees claim that their supervisors harassed them by revoking their telework privileges, changing their schedule, or giving them undesirable duties.  None of these actions are clearly related to a protected characteristic. If that’s the case, you will likely have to present evidence that your supervisor made negative comments relating to your protected class, or that your supervisor also harassed other members of your protected class.  For example, the fact that your supervisor allows all female employees to telework one day per week but never allows male employees to telework, suggests that the treatment is related to sex.

The harassment affected a term or condition of employment.

An example of harassment that affects a term or condition of employment is giving you unpopular job duties or an undesirable schedule.  Maybe your supervisor always assigns you to clean the restrooms. Or maybe you’re always assigned to work on weekends, even though you aren’t the newest or most junior employee.

The harassment had the purpose or effect of unreasonably interfering with your work environment.

However, if the harassment doesn’t affect a term or condition of your employment, you must prove that it had the purpose or effect of unreasonably interfering with your work environment. Examples of harassment that don’t affect terms or conditions of employment may include things like your supervisor:

• Yelling at you
• Making negative comments about you to colleagues
• Ignoring you
• Excluding you from meetings

Not only do you have to prove that these things actually happened, and that they were related to a protected characteristic, you must also prove that a “reasonable person” would think they created a hostile work environment.  It’s not enough that you personally found the harassment to be offensive. Generally, this requires that you prove that the harassment was severe (really bad) and pervasive (frequent and/or ongoing).

What are common examples of a hostile work environment?

Every case is different, but certain types of conduct are generally considered harassing.  Common examples include:

• Displaying objectively offensive items related to a protected characteristic (nooses, swastikas, sexually-explicit images, etc.)
• Making derogatory comments about a protected class
• Sexual contact and threats

However, even these egregious behaviors may not be enough to prove a hostile work environment.  Employers may avoid liability if they take prompt and effective corrective action. Say your new colleague displays pornography on his computer screen every time you or any other female works by his desk.  He also makes a disgusting, sexually-explicit comment to you. You report your new coworker to your supervisor. Your supervisor suspends your coworker for a week. Your coworker returns after his suspension and doesn’t display pornography or make inappropriate comments ever again.  There’s no doubt that your coworker’s behavior was sexually harassing. However, you may not have a claim or may not be able to recover any damages because your employer took prompt and effective action to stop the harassment.

Take action against a hostile work environment.

Do you work in a hostile work environment?  Alan Lescht and Associates can help you through this process.  Our attorneys will evaluate your case, determine if you have a claim, and advise you about how to exercise your legal rights.  We represent federal government employees around the world, and state and local government and private sector employees in DC, Maryland, and northern Virginia.  Our employment attorneys handle administrative complaints filed with the EEOC, DCOHR, MCCR, and similar agencies, and we litigate discrimination and hostile work environment cases in federal and state courts.