Can a pat on the back, or a Facebook share make you a harassment offender? What if you have a supervisor who yells, curses, and insults his subordinates?
Do these behaviors signal that you have a hostile work environment?
Yes. Yet, a behavior must meet certain legal criteria before it can be used to label a workplace as hostile. Here are five questions that employers must investigate if an employee complains of a hostile work environment.
5 Behaviors that signal a hostile work environment
- The behavior creates an intimidating work environment
- It’s an unwelcome conduct
- The behavior is severe and pervasive
- It’s targeted towards a member of the protected class
- It continues over time
Harassment victims can blame an employer for the hostile work environment, IF
- “The work environment is persistently offensive, and was generated as a result of the victim being a member of the protected class.”
A few examples of what may constitute as hostile work environment
- Unwelcome sexual advances
- Unwelcome touching, including hugging
- Leering or suggestive staring
- Displays of sexual nature, such as posters and emails
- Offensive comments on physical appearance
- Racist and sexual comments, such as jokes, teasing and mocking
- Demeaning or threatening behavior, such as blocking exit or their workspace
Common misconceptions of hostile work environments
One of the most common misconceptions is that any work environment that’s intimidating and offensive can be termed as hostile. It is not so. If your supervisor is rude with everyone in his team, they cannot claim it to be hostile. But, if he is acting rude with a female employee only because of her gender, then it falls under the pretext of discrimination.
For a work environment to be hostile – the harassment must also be based upon a person being a member of the protected class.
Protected class under federal and state anti-harassment laws
Federal and state laws legally protect a certain group of people against discrimination based upon the traits of that group. Protected traits include:
- National origin
- Religious beliefs
- Pregnancy and veteran status
Some states also extend the anti-harassment protections to people based on their gender identity, sexual orientation, and political ideology.
What is harassment and what is not?
Sexual harassment and hostile work environment are legal terms – using them requires that they meet certain legal criteria. It’s possible that an employee may feel that they are being subjected to one, but it still may not fall under the preview of hostile work environment under the federal and state laws.
For instance, an employee may get treated unfairly against their education level, but since it’s not considered as a protected trait, they may not qualify for protections under anti-harassment laws.
Two Examples of illegal harassment
- An employee who’s being treated unfairly because of his or her medical history.
- An employee, though qualified, is being denied promotion or new work assignments because of their age.
Here’s a sexual harassment case settled early this year. The allegations of a hostile work environment sexual harassment made by a sales executive fell through. The employer won the lawsuit. The court did find that the manager’s conduct to be severe or pervasive enough to be treated as a hostile work environment under Title VII.
Pop quiz – What exactly falls under the preview of hostile work environment laws?
Let’s look at a few cases highlighted by Forensic Notes on their blog.
A 2007 lawsuit against the Seattle City Light by its workers was settled in favor of the workers. The plaintiffs were:
- Assigned “dead-end jobs” while others were “regularly provided” with benefits, support staff and meaningful work.
- Paid lesser for performing similar work.
- Discriminated against in the promotion process.
In another such case, the EEOC alleged that the supervisor of the charging party:
- Swore at him,
- Threatened to have him fired.
- Scheduled him specifically to back-to-back shifts.
Moreover, the HR department, despite repeated complaints, failed to take corrective actions.
Costs of a hostile work environment
In 2017, EEOC reported obtaining $56.6 million in monetary benefits for victims. Last year, the EEOC settled a hostile work environment claim for $700,000. While another victim received $1.25 million as damages for her claim.
- Cost to Business
As per a recent study, toxic work cultures can cost companies more than $10,000 in employee turnover alone. Here are four ways a hostile work environment can hurt your business.
- Time and money spent to address a claim.
- Resources diverted to conduct an internal investigation.
- Loss of employee moral
- Loss of reputation both as an employer and business.
Employer’s liability under sexual harassment laws
In most cases, if the hostile work environment is being created by a supervisor, the employer is presumed to be liable for the supervisor’s actions.
It’s important for you as an employer to exercise reasonable care to prevent and promptly correct a harassing behavior. Here are five steps that you should take immediately.
- Do not dismiss any complaints. Investigate every complaint, even if it appears to be minor or inoffensive at first sight.
- Take steps to correct unaccepted and inappropriate behavior.
- Follow up with a complainant to ensure that the harassment has stopped.
- Educate your employees. Train your employees on sexual harassment and appropriate workplace behavior.
- Train your supervisors to detect and respond to hostile work environments.
Courts have ruled in favor of employers. In most cases, only because the employer kept a detailed harassment policy, and because the employer took appropriate action when the complaint was received.
Equally important is the use of due vigilance when stepping into the red zones of office conduct, such as comments, jokes and nicknames that demean others on the basis of their race, gender, religion, age, or disability.
In one of the cases stated above, the charging party was harassed due to his mental impairment. Among other charges, one was that the supervisor used to call the complainant ‘retard’. The lawsuit was settled for $90,000 in damages.
Employers need to be alert to office conduct that’s inappropriate and ensure that it’s ended as soon as it does not recur.
Consider the following two incidents of online harassment. In both the cases, the employer was sued for hostile work environment:
- Chevron was forced to pay $2.2 million to their female employees for failing to prevent a hostile work environment created with email jokes.
- Similarly, two Morgan Stanley employees filed a $60 million discrimination lawsuit, claiming racist jokes were disseminated via email.
Harassment via emails or social media is tough to detect. Once a Facebook message has been shared, the damage cannot be undone.
Take proactive measures
The only effective defense against online harassment is taking preventive measures. Proactive measures, such as monitoring email and messages could help you prepare. With live monitoring, you can take immediate and appropriate corrective actions too.
How to protect against email harassment:
- Include email usage in your harassment training and policies
- Archive emails so you have a record of email exchanges
- Proactively monitor email – Both internal and external communications.
Legally, a work environment cannot be labeled as hostile unless the conduct in question is severe, discriminatory, pervasive and unwelcome. If the activity was an isolated incident or a simple attempt at initiating a sexual relationship that was not reciprocated nor repeated – hostile work environment charges fall through.
As employers, you are bound to act proactively. And, your actions must reflect that you’re doing your best to prevent a hostile work environment. You have a personal responsibility to do so. And, you have a legal obligation to do so.