Understanding what makes a hostile workplace
The definition of harassment, at its core, is an ongoing or systematic series of actions towards a person that are unwanted and harmful. These actions can be based around racial prejudice, sexual advances, or outright malice. When it comes to the workplace, unfortunately, harassment remains as prominent as ever.
Employees should be entitled to work in a comfortable, healthy environment, but this isn’t always the case. Harassment can contribute to what is known as a hostile workplace, which in turn can translate to a negative impact on employee happiness, work production, and the reputation of the company.
Of course, as is often the case with issues of law, there are a number of variations and intricacies to consider. Understanding the characteristics of workplace harassment, bullying, and hostility, and the ways they differ in regards to possible courses of action, can be tricky for anyone who isn’t well versed in employment law.
This doesn’t mean you need to visit an attorney in person to find the answers to your questions. If you’re seeking guidance for your workplace difficulties, the experts are here to assist! We took some of the most prominent hostile workplace questions to two of the attorneys on JustAnswer. Read on for some information that might help you figure out what to do next.
But first, a quick introduction!
Meet the Experts
Allen M. is a Judge Advocate General’s Officer who has been an Expert on JustAnswer since June 2009. He has used his experience pertaining to military law, employment law, criminal law, and personal injury law to help over 19,000 customers to date.
You can contact Allen directly on JustAnswer at any time with your legal inquiries.
Ely is a Counselor at Law who has been an Expert on JustAnswer since November 2007. To date, he has successfully assisted over 57,000 customers with their issues and inquiries related to general law, employment law, immigration law, business law, traffic law, personal injury law, criminal law, intellectual property law, and bankruptcy law.
For legal guidance, you can contact Ely directly on JustAnswer with your questions.
What kind of conduct, interactions and overall behavior constitute a hostile work environment? What separates hostility from workplace bullying?
Pretty much any sort of conduct can constitute a hostile work environment. Leaving someone out of common office actions, aggressive language towards a person, minor slights or insults, destruction of an individual's property.
There are literally an infinite number of possibilities, because how a person chooses to display their hostility varies from person to person. What truly makes this behavior a "hostile work environment" is the motivation behind the behavior. A person must be engaging in the hostile behavior based on their discrimination against someone's race, religion, gender, age, disability, FMLA use or worker's compensation use. Without that illegal motivation, the behavior is not "hostile work environment" but rather, workplace bullying.Allen
Hostile work environment" means actions which against an employee based on gender, race, nationality, religion, disability, sexual orientation, age or other legally protected status which creates an intimidating, offensive, or difficult work environment. So essentially, "hostile work environment" is an aspect of discrimination.
In contrast, actions against an employee which are mean, but are not due to gender, race, nationality, religion, disability, sexual orientation, age or other legally protected status is workplace bullying, not a hostile work environment.
For example, a manager asking an employee from an Vietnam if she brought "dog" to work for lunch (i.e. capitalizing on an offensive stereotype against an Asian culture) may be a hostile work environment, and thus discriminatory; therefore, illegal. Contrast this with a manager telling an employee that their food looks "disgusting." Since race, national origin, or nationality is not part of the comment or implied therein, the latter comment may fall under bullying, but not hostile work environment.Ely
The takeaway: A hostile work environment can result from number of different behaviors. However, if people are being unpleasant towards you, but their motivations for doing so aren’t based in discrimination or other illegal practices, it's considered workplace bullying. And although bullying is never fun for those who are forced to contend with it, this is not enough to constitute a hostile workplace.
Are there laws or regulations that protect employees from workplace harassment and hostility?
There are various state and federal laws that make a "hostile work environment" illegal. Each state's laws against discrimination would have to be considered, while the federal laws are under Title VII, the Americans with Disabilities Act, Age Discrimination in Employment Act, and the Family Medical Leave Act.Allen
There are laws in place that protect employees from discrimination. However, there are no laws against bullying. So it depends on whether the harassment and hostility falls under discrimination or bullying. In addition, an employee may sue for intentional infliction of emotional distress as a third option, but only if the action of the other party is "extreme and outrageous."Ely
The takeaway: There are laws at both the state and federal levels that protect employees from hostile work environments. However, this protection is for hostility stemming from discrimination. Workplace bullying is not something that is taken into account by these laws. If the bullying is at a level considered “extreme and outrageous,” you could potentially sue on the basis of emotional distress.
If I work for a small company that doesn’t have an HR department, can I still talk to someone in-house about my hostile workplace concerns?
You can talk to a manager or supervisor about these issues if you trust them. It is also important to give the employer the chance to try and "cure" any hostile work environment, so finding someone in a position of authority to hear your complaints is vital.Allen
Yes. An HR department has no special legal power. An HR department is simply a department within the company charged with handling various interpersonal problems within the company. Having an HR department is not a legal duty, and many smaller companies lack one. If so, then the employee can bring up their issues to their immediate superior, or, whomever they believe to be a person who can help them. However, one should keep in mind that the HR department ultimately has the company's legal interest at heart. Unless the employee believes that HR will simply try to bury the complaint, in which case the employee is better off talking to an attorney.Ely
The takeaway: Although HR departments can handle interpersonal problems for a company, they don't have any unique legal powers that make them a necessity. If your employer doesn’t have an HR department, you can take your concern to someone in a position of authority (like an immediate superior) that you can trust. If you’re concerned about the complaint getting pushed aside or covered up, you can also consult with an attorney.
I want to resolve the problem, but I’m worried about causing problems at work. Can filing a formal complaint backfire on me?
An employer cannot retaliate against an employee for making a complaint about a hostile work environment, but remember that the definition of hostile work environment is limited. Complaining about workplace bullying or generalized harassment does not come with the same protections that complaining about illegal discrimination does.Allen
Unfortunately, yes. For the most part, an employer can discipline or terminate for any reason, without notice. Many say "What about my right to work?" A "right to work" simply means that at the time of being employed, the employee has a choice of whether or not to join a union as a condition of employment. A "right to work" has no application here.
However, an employee cannot be disciplined or terminated for filing a valid discrimination complaint, being a whistleblower, or if their contract prevents it. The problem there is that the employee has to show that their complaint or whistle blowing had merit in order to show that the discipline or termination was illegal... often after they had already been disciplined or terminated.Ely
The takeaway: If you’re filing a valid complaint for discrimination and workplace hostility, you can’t be disciplined or terminated. However, this is assuming you can prove that your complaint is based on illegal treatment. Since the definition of a hostile work environment does not include issues like general bullying and unpleasantness, your complaint might not come with this protection. As such, it’s important to be sure you have a case before filing a complaint.
What are the steps I should follow if I believe I’m the victim of a hostile work environment?
If you believe you are the victim of a hostile work environment, you should document the behaviors and identify which of the protected categories you believe are at the heart of the harassment (race, religion, gender, age, disability, FMLA use, worker's compensation use). You should then make a complaint with someone in the workplace that has authority, the purpose of which is to place the employer on notice. If this doesn't resolve the issue, then you need to file a complaint with the EEOC in your state (or Department of Labor for FMLA-related harassment).Allen
That depends on what is meant by "hostile work environment." Does it fall under illegal discrimination? If so, one's options are the company's HR or an outside attorney. If employees go to their HR department or equivalent thereof, they may be pressured to drop the matter. The employee has to use reasoning skills to determine what option is best.
Does the conduct fall under bullying? If so, then HR or its equivalent is often the entity to handle it. However, if the conduct is "extreme and outrageous," the employee may still wish to talk to an attorney about a lawsuit for intentional infliction of emotional distress as another option.Ely
The takeaway: The first step should be to document the behavior in question using detailed notes. Include any of the factors that could make the hostility fall into a protected category, e.g. discrimination based on gender or race. If the central issue is indeed illegal, you may want to consider taking it to an attorney. Many in-house complaints don’t go anywhere due to pressure from the employer or the HR department, which will always seek to protect the company’s interests. If this isn’t a concern, or the hostile working environment is the result of bullying, management or HR could be a viable option. If the employer is put on notice, and there is still no resolution, you may want to take your complaint to the EEOC.
Is there anything else on the subject of workplace hostility that you’d consider imperative for people to keep in mind?
Many employees wrongly assume that any mean conduct is illegal conduct. This is false. Bullying is not illegal, unless there is an underlying element based on gender, race, nationality, religion, disability, sexual orientation, age or other legally protected status. Employees should be aware of what groups are afforded protected status by reading up on relevant federal and state laws.Ely
As awareness of sexual harassment and inappropriate workplace behavior continues to rise, there will also be rises in hostile workplace complaints. However, if you aren’t clear on how to proceed, you could end up facing an even bigger dilemma than before you started. Understanding harassment’s definition and the differences between bullying and hostile workplaces is a start, but you’ll also need to know how these principles apply to your specific situation. When in doubt, seek out Expert assistance before filing your complaint.