Hostile Work Environment

Unlawful harassment is a form of discrimination that violates federal and state employment laws.

Hostile work environment harassment refers to an unstable or dangerous workplace created when an employee suffers repeated workplace harassment. The harassing conduct unreasonably interferes with the victim’s work performance or creates what a reasonable person would find an objectively hostile or offensive work environment.

If the conduct adversely affects the performance or well-being of the targeted employee, or any reasonable person in the workplace, the conduct may be illegal.

  • The harassment may not directly result in discipline or lost opportunities, but does make it difficult for the victim to work because of constant ridicule, belittling comments, teasing or sexual come-ons.
  • The harassment becomes so debilitating that the victim fears going to work because of the oppressive, hostile or intimidating atmosphere created by the aggressors.
  • It may reach the point where the victim is suffering psychologically and manifests stress related physical problems.

Illegal harassment goes beyond sexual harassment

Harassment includes unwelcome verbal or physical conduct based on the employee’s protected basis, such as the person’s,

  • Race,
  • Color,
  • Religion,
  • Sex,
    • Whether or not the harassment is of a sexual nature, and
    • It can involve people of the same sex.
  • National origin,
  • Age (40 and over under federal law, any age under Virginia law),
  • Disability, or
  • Retaliation
    • If an employee complains about, opposes or cooperates in the investigation or litigation of an illegal practice, those actions result in the person being legally protected from negative consequences due to those actions.

What is harassment?

The unlawful harassing conduct must be unwelcome and based on the victim’s protected basis.

The conduct must be:

  • Subjectively abusive to the person affected, and
  • Objectively severe and pervasiveenough to create a work environment that a reasonable person would find hostile or abusive.

Whether the harassing conduct is severe or pervasive is determined on a case-by-case basis in light of,

  • How often it happens,
  • The severity,
  • Whether the conduct was physically threatening or humiliating, not just an offensive comment,
  • Whether the conduct unreasonably interfered with work performance,
  • The impact on the employee’s psychological well-being, and
  • If the harasser was a superior within the organization.

Examples of harassing statements and behavior

Actions and words that may create sexual hostile environment harassment are only limited by the sick imagination of the harasser, including:

  • Staring in a sexually suggestive manner,
  • Making offensive remarks about looks, clothing or the employee’s body,
  • Inappropriate physical touching that make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another’s body,
  • Sexual or lewd jokes, inappropriate pictures, posters and gestures, and
  • Sending, forwarding or soliciting sexually suggestive letters, notes, emails or images.

Other actions which may result in hostile environment harassment, not based on sex, include:

  • Use of derogatory words, phrases, epithets,
  • Use of emails, gestures, pictures or drawings which would offend a particular group,
  • Comments about an individual’s skin color or other characteristics,
  • Making disparaging remarks about an individual,
  • Negative comments about an employee’s religious beliefs (or absence of religious beliefs),
  • Negative, stereotyping comments regarding an employee’s protected basis, and
  • Derogatory or intimidating references to an employee’s mental or physical impairment.

The harasser need not be your supervisor, the victim need not be the target

Harassment need not committed by an employee’s supervisor or a member of management to be illegal. In addition to actions and conduct by management, a co-worker or non-employee (such as a contractor, vendor or guest) could potentially create a hostile work environment for an employee. A person making a claim of hostile work environment harassment need only be affected by the harassing conduct, not necessarily the employee to whom the conduct is directed.

What is not harassment?

Anti-discrimination laws are not a civility code. These laws do not prohibit simple teasing, offhand comments or isolated incidents that are not serious. Instead, the conduct must be so objectively offensive as to change the conditions of the person’s employment whether as a result of a tangible employment action or is sufficiently severe or pervasive enough to create a hostile work environment.

The importance of reporting harassment

If you feel you are being harassed, one way to try to resolve the problem is to tell the harasser to stop. If you are uncomfortable confronting the harasser, you should not endure harassment or try to resolve the matter yourself. Your employer should have other ways for you to report the harassing conduct.

You may be able to report the incidents to your employer’s human resources department, your manager’s manager, or a manager of a different department. If employees suffering through harassment don’t complain, the harasser may interpret this as a sign the behavior is not a problem or that the victim is not offended.

Many employees who fail to report harassment fear they will lose their job, they won’t be taken seriously, they will be blamed, or some form of retaliation. Harassment victims need to choose to either continue to tolerate the situation or take steps to end it, which may result in negative consequences.

It’s illegal to retaliate against an employee for complaining of illegal harassment. If harassment is reported, and the employee suffers consequences as a result, that employee not only may have a legal claim for harassment but retaliation as well.

An employer should not tolerate harassment of its employees. By reporting harassment, the employee should not only help him or herself by ending the problem, but also help the organization comply with the law, enforce its own policies, and hopefully prevent others from being subjected to similar behavior.

Not reporting harassment can impact potential legal claims

Generally, failing to report such harassment may seriously impair an employee’s ability to pursue legal action against an employer. The U.S. Supreme Court has ruled that a defendant can have an affirmative defense against a harassment claim if an employee “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998)

The Ellerth ruling encouraged employers to put in place policies forbidding harassment and procedures for filing complaints, investigating complaints and discipline for those found to have harassed others. Depending on the facts of the situation, failing to report harassment may not necessarily be fatal to a legal claim against the employer, but it is something that ideally should be done.

Contact our office and get help

You should not have to endure harassment at work. You can do something about it.

We often see cases of harassment and retaliation. Attorneys at Spiggle Law have helped many individuals recover when employers have discriminated against them by subjecting them to harassment and for trying to stand up for their rights. Contact us to discuss your situation, your legal rights and options on how you can move forward.

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