A hostile work environment is actionable by the Equal Employment Opportunity Commission (EEOC) and it is based on employee allegations of discrimination against a legally protected class. The recognized protected classes are age (over 40), disability, national origin, race, religion, gender or sexual orientation. The acts must be “severe or pervasive enough to create a work environment a reasonable person would consider intimidating, hostile or abusive,” according to the EEOC.
Harassment in the workplace violates Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 and the Age Discrimination Employment Act of 1967.
There is not a set list of factors required for there to be a finding of a hostile work environment, it is looked at a situational basis but from an objective and subjective viewpoint of a reasonable person. The conduct may include offensive jokes that target a protected class, assault, insults or anything else that significantly interferes with a person’s work performance. Examples of harassment include, but are not limited to:
- Coworkers constantly bringing up a party’s race or gender in relation to job performance
- Constant disparaging comments on a party’s sexual orientation and the stereotypes associated
- Sexual harassment by persons of one sex against persons of the same sex when forcibly subjected to sex-related and humiliating actions (Oncale v. Sundowner Offshore Services, Inc.)
What Isn’t Considered a Hostile Work Environment
Workplace bullying is not considered to constitute a hostile environment unless it occurs because of the employee’s membership in a protected class. An unpleasant boss or coworker, petty annoyances and isolated incidents do not meet the legal criteria of a hostile work environment. The actions must alter a reasonable person’s expectations of a comfortable and productive work environment.
EEOC Investigation and Employer Liability
The Equal Employment Opportunity (EEO) regulations require that a complaint be fully investigated, which includes taking witness statements under oath and collecting company records.
An employer is automatically liable for harassment by a supervisor when it results in a negative employment action. However, the employer can avoid liability if it can prove that “1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer,” according to the EEOC website. For employees that are non-supervisors or people that the employer has no control over, the employer is only liable if they had actual knowledge or should have known about the harassment and did not take corrective action.
A determination of whether harassment meets the severe or pervasive threshold is made on an individual case basis. If a hostile work environment is found, the EEOC will issue a “Notice-of-Right-to-Sue” letter.