As a legal practitioner, I can’t count the number of times I’ve had to clarify exactly what constitutes a hostile work environment. When it comes to employment discrimination, there are several laws intended to protect employees.
In addition to city and state laws, which vary in strength and scope, there are many federal laws that offer this protection as well; most notably Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1967, the Age Discrimination in Employment Act, the Genetic Information Non-Discrimination Act and the Equal Pay Act.
Courts have repeatedly opined that these laws are not general civility codes, meaning — no matter how unfortunate — the law does not protect against generally rude or undesirable behavior at work. You can’t sue your boss just because he’s a jerk. No, the conduct that city, state and federal anti-discrimination laws protect against must be related to a class protected by those statutes.
In other words, the unwelcome conduct must target a protected class, most commonly: sex/gender, race, religion, age, disability, national origin, veteran status, domestic violence victim status and so forth. In some states, sexual orientation is also a protect class.
The term “hostile work environment” carries legal significance that goes beyond workplace unpleasantness or even general bullying. For a hostile work environment to exist, there must be an overarching protected class. In other words, when an employee alleges they’ve been subjected to a hostile work environment, it must be related to — and a direct result of — a group that is protected by a state or federal statute. One's civil rights (and individual employment) must be threatened as part of the offensive conduct.
What isn't a hostile work environment?
Before getting into what constitutes a hostile work environment — and the number one sign of one — it helps to discuss conduct that does not constitute a hostile work environment. Cursing, casual joking, rudeness, petty slights, nitpicking, bossiness and unpleasant behavior, on its own, are not enough to bring a hostile work environment claim.
A supervisor or coworker who routinely antagonizes most or all employees in the workplace, regardless of who they are, will likely not be found to be creating a hostile work environment. Why? Because the conduct is done indiscriminately, i.e. without regard for a protected class.
In fact, a common defense for employers in employment discrimination cases, particularly those involving managers or supervisors, is that the alleged bad actor did not engage in discrimination, but was simply a “stickler” or a “loose cannon” known for giving everyone a hard time.
An employer who routinely blows their lid, creates a threatening and intimidating work environment, and generally treats their employees poorly will be protected under the law if their conduct is deemed unrelated to a protected class. This is a hard pill for many employees to swallow, particularly those who find themselves stuck in such volatile workplaces.
So, what constitutes a hostile work environment?
As discussed above, a hostile work environment can only exist where the conduct allegedly targets a specific protected class or classes. For conduct and/or speech to rise to the level of a hostile work environment in these cases, the conduct must be intentional, severe or pervasive, and directly interfere with the employee’s ability to perform his or her job.
For workplace conduct to be deemed severe or pervasive, a court or investigating agency will utilize a “reasonable person” standard, asking whether a reasonable person would consider the alleged conduct to be intimidating, hostile or abusive.
Additionally, one-off occurrences of offensive behavior will generally not rise to the level of a hostile work environment. The “stray remarks doctrine,” first set forth by the U.S. Supreme Court, and expounded upon by courts since then, has routinely been relied on to dismiss employment discrimination claims.
Exactly what constitutes a stray remark warrants its own discussion, but the typical analysis reviews who made the remark — a decision maker or not; the nexus between the remark and the employment decision at issue; the ambiguity of the remark or whether it could reasonably be deemed discriminatory; and the temporal proximity between the remark and the adverse employment decision.
So, what are the signs you may be working in a hostile work environment? There are several common ones and one universal one that is found in all hostile work environments.
1. Harassment and Discrimination
An obvious sign that you may be working in a hostile work environment is that you notice either yourself or others being harassed or treated disparately on the basis of a protected class. Maybe you’ve had derogatory comments directed toward you because of your race or sex, or have been subjected to an ongoing pattern of adverse conduct because of it.
A hostile work environment cannot exist without unlawful conduct against a protected class. As such, the harassment of a certain group of people may be the first sign you are working in a hostile work environment.
Examples of discriminatory speech can include, for example, remarks that women do not belong in a certain profession, or that it’s time for management to clean house and bring in some “young blood.” Gender and age discrimination are clear signs of hostile work environment harassment.
In addition to discriminatory speech, other harassing conduct may include persistent unwelcome remarks about a person’s body or appearance, and in extreme cases, sexual assault.
Even with such blatantly offensive and unlawful conduct present, it may be difficult for someone to realize they are working in a hostile work environment. Nevertheless, the presence of harassment and discrimination is one of the most clear-cut signs of one.
2. Well-Known Biases
Another sign of a hostile work environment is that an employer's biases may be well-known. This ties into the presence of harassing speech and conduct, but, rather than being hidden, it openly permeates the workplace.
In other words, the bad actor’s prejudice against a certain class of people is not only well-known throughout the workplace, but accepted as part of daily life.
This is frequently played out in matters of pregnancy discrimination. The story usually goes something like this: an employer does not like to hire pregnant women, does not like current employees to become pregnant and does not expect pregnant women to “stick around” once they have their babies.
A female employee becomes pregnant. Despite having a stellar performance record, she suddenly finds that projects are taken away from her. She asks for more work, but is told there is no work for her. The employer routinely makes comments about how women “change” after becoming mothers and that women should stop working when they become pregnant. As the months pass, the harassing speech escalates. The supervisor openly threatens the pregnant employee’s job security and insinuates that her job may not be waiting for her when she returns from maternity leave despite her employee ability and actions.
In this scenario, rather than being surprised by the employer’s shocking bias, everyone in the workplace accepts that this is the way things are, not only because they’ve repeatedly witnessed the employer’s offensive conduct firsthand, but because there are societal elements at play that make this form of discrimination seem OK. For others who endured similar discriminatory treatment, they may even see it as a rite of passage.
When an employer’s obvious unlawful bias permeates the workplace in this manner, it may be a sign of a hostile work environment.
While subtler forms of workplace bias can be just as insidious and damaging, open biases most lend themselves to a hostile work environment. Why? Because the openly hostile bias is what leads to the severe or pervasive, intolerable conduct that ultimately interferes with an employee’s ability to do their job.
3. Unchecked Bad Behavior
Another red flag indicative of a hostile work environment is that the discriminatory or harassing conduct at issue is allowed to continue despite complaints made about it. Wise employers will do everything in their power to stop unlawful harassment in its tracks.
Many employers even go beyond preventing unlawful harassment/discrimination and have policies prohibiting general workplace bullying.
Employers have a duty to prevent harassment in the workplace. Employers are also responsible for the conduct of supervisors. In Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, the seminal cases on this point, the Supreme Court held that employers are always liable for unlawful harassment by supervisors when it results in a tangible employment action.
Employers have an affirmative defense against liability, however, if the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and if the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Since it is in the employer’s best interest to prevent and correct workplace harassment, it is very concerning when an employer fails to do so. Where an employer fails to appropriately respond to such complaints, those failures only exacerbate the hostile work environment.
Worse, there may be situations where the employer is intentionally complicit in the behavior. For example, maybe the bad actor is the company’s CEO or head of Human Resources and the abuse is top-down.
Those at the highest level do not have to actively engage in harassment for a work environment to be hostile. If the harassing conduct is intentional, severe or pervasive, and has been allowed to continue unchecked, despite the complaining employee following the appropriate complaint procedure, this may be a sign that the workplace is truly a hostile work environment.
4. The Work Environment Literally Makes You Sick
A common symptom of hostile work environments is that the people working in them may actually become sick because of them. The stress and anxiety of working in a discriminatory workplace can manifest in many ways, but some of the most common include developing headaches, difficulty sleeping or concentrating, gastrointestinal distress, nervous ticks, changes in appetite, weight loss, changes in interpersonal relationships, loss of self-esteem, panic attacks, heart palpitations and a host of other problems.
Diagnosis to determine the root cause of these issues is, of course, best left to a medical professional. But time and again, employees who are the target of workplace discrimination or harassment frequently find themselves literally sick because of it.
If you believe you are working in a toxic workplace and have noticed that you’ve experienced weight fluctuations, trouble interacting with friends and family, a loss of confidence, headaches or other physical manifestations of stress/anxiety, you should trust your gut — you may in fact be working in a hostile workplace environment.
5. You’re Being “Forced Out” Of The Workplace
Another common sign of a hostile work environment is that the victim may feel they are literally being forced out of the workplace by their employer. The harassing conduct may be so severe and ongoing that it becomes apparent that there is no way to continue working for the employer.
When employees end up succumbing to these toxic environments, their resignation may be considered a “constructive discharge,” which occurs when the employer unlawfully makes working conditions so intolerable that the employee is forced to resign.
Feeling that you are being “forced out” of the workplace, or finding yourself resigning because of it, is another big sign that your workplace may be a hostile work environment.
But the number one sign of a hostile work environment? Intimidation.
While the signs of a hostile work environment vary, the number one sign of a hostile work environment, universal in all cases, is intimidation. Intimidation is the one factor unique to all hostile work environments and it takes many forms.
Bad actors may threaten discrimination victims, warning them not to report their conduct. They may threaten an employee’s bonuses, income or job security. They may turn other coworkers against the employee, essentially making them a workplace pariah with nowhere to turn.
But the intimidation can also be less explicit.
Even in instances where there is no express prohibition on complaining, victims are frequently intimidated to come forward and report the discrimination they’ve suffered. They fear retaliation. They fear for their jobs. In extreme cases, they even fear for their lives. The conduct they’ve endured may be so rampant throughout the workplace, they may worry just how far the harassment will extend and will feel they have nowhere to turn.
In some circumstances, particularly where the workplace is a municipality, government or law enforcement agency, an employee may truly feel they have no options since they’ve seen the dark side of unbridled authority and know firsthand that the checks and balances intended to stop unlawful behavior sometimes fail.
But even beyond those workplaces, intimidation and the fear it creates is a common thread. This is the very essence of employment discrimination. Employees need their jobs, and the last thing they want to do is risk losing them.
In some situations, employees fear ever being able to work in their field again and worry their victim status or label as a “complainer” will follow them to other workplaces.
The fear to speak up and assert your rights is common, but so too is the threat of reprisal when an employee does come forward. Though there are laws in place to protect against retaliation for exercising the rights granted by anti-discrimination laws, instances of retaliation are still common, and even where it is not, the fear of retaliation is strong.
Further, asserting your rights requires courage and the ability to navigate the legal system. Many times, bad actors are betting on the fact that victims may not be up to the challenge of working with a hostile work environment attorney and bringing a legal claim.
If you believe you may be working in a hostile work environment, once all the legal boxes have been checked, trust your instincts. If you feel too intimidated to speak up and exercise your rights, or if you have come forward to your employer with your concerns and you still feel the looming threat of retaliation or continued harassment, you may in fact be working in a hostile workplace.
Candace is a practicing attorney, freelance writer, and a proud mom.