The Complete Guide to a Hostile Work Environment in 2018

This quick guide spells out what makes certain hostile actions illegal and how to remove toxicity from the workplace before it escalates into a lawsuit.

Posted by Katie Yahnke in on December 19th, 2017

A hostile work environment can look like many things.

The ambiguous word hostile is the issue.
Founders, partners, managers, supervisors, human resources experts and legal professionals have all struggled to pin down what constitutes a “hostile work environment” and how to help employees who think they’re facing one.

The ambiguous word “hostile” is the issue.

 

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Over classifying workplace issues as hostile takes away from the severity of the term, but under classifying issues leads to management mishandling allegations.

 

What is a Hostile Work Environment?

The Legal Dictionary formally defines hostile work environment as “unwelcome or offensive behavior in the workplace, which causes one or more employees to feel uncomfortable, scared, or intimidated in their place of employment”.

Learn how to identify several different types of unwelcome behavior with this 11 Types of Workplace Harassment Cheat Sheet.

In other words, a hostile work environment is the sum of actions, communications or behaviors from a work acquaintance (colleague, boss, client, vendor) that alter the terms, conditions, or expectations of a comfortable workplace for an employee.

 

What is NOT a Hostile Work Environment?

A common misconception is that a hostile work environment is a place that’s generally unpleasant.

A bad boss contributes to a poor workplace. A lack of perks is inconvenient. A loud coworker is obnoxious.

 

Loud Colleague - Sound Familiar?

Keep calm and let Timothy Dimoff tell you how to successfully deal with difficult people in the workplace. Or, share it with someone who you think might be nearing their wits’ end.

Watch the How to Deal with Difficult People Webinar

 

Feeling overworked, underpaid, or generally unhappy is sometimes a reality.
Treating staff and colleagues badly makes little business sense and will drive away remarkable employees, but it’s not illegal.

Feeling overworked, underpaid, or generally unhappy is sometimes a reality.

For a work environment to be illegally hostile, it needs to go beyond minor inconveniences, casual joking and general rudeness.

(But, this also doesn’t mean bullying needs to be an innate part of the company culture. This webinar by Timothy Dimoff outlines some of the ways that companies can implement a no-bullying culture in the workplace.)

So, when does a hostile environment at work cross that line from legal to illegal?

 

Depressed business people - hostile work environment

 

When is Hostile Behavior Illegal?

Winning hostile work environment cases typically meet the same criteria.
It’s hard to say when a hostile environment becomes illegal since there’s no exact formula that judges use.

First, cases of hostile work environments are extremely subjective and fact-specific.

Second, there’s rarely a smoking gun (the bully admitting their wrong-doing).

And third, because there’s no smoking gun, the case is proven through the sum of the circumstances. The courts consider all aspects of the situation, including the frequency and severity of the hostile behavior.

The court looks at each behavior or act individually to determine whether the overall situation is hostile enough to require some form of legal action.

Winning hostile work environment cases typically meet the same criteria. For the behavior to be illegal, it’s likely:

  • Discriminatory in nature
  • Pervasive
  • Severe
  • Unwelcome (of course)

 

1. It’s Discriminatory


Title VII of the Civil Rights Act (1964) protects employees who are discriminated against based on their gender, race, color, national origin and religion.

Discrimination against the “weak” is also illegal, including employees who have a disability, take medical leave, or use workers’ compensation.

Discriminatory comments like these often said casually, with a smile, or played off as a joke.

But being discriminated against creates a hostile atmosphere for the employee, where they feel unsafe and disrespected by their employer.

And this behavior that violates Title VII is what helps an employee pursue legal action.


Check out this video for a quick explanation of hostile work environments:


Limitations to the Act

Title VII does not apply to small businesses (those with 14 or fewer employees), Indian tribes, private member clubs exempt from taxation and employers of foreign nationals outside the United States.

  • There is a statute of limitations for filing a claim under Title VII.

An employee has up to 180 days (six months) from the date of the last discriminatory act to file a charge with the EEOC.

 

2. It’s Pervasive


In extreme situations, severity outranks longevity and one single event is enough to create a hostile environment.
In most cases for a hostile work environment to be illegal, the actions that create the hostility are pervasive and long-lasting and not limited to one or two remarks.

In extreme situations, severity outranks longevity and one single event is enough to create a hostile environment.

Often though, the continuous and all-encompassing nature of a hostile work environment is what sets it apart from the unexceptional (and mostly legal) workplace bullying.

A court will use objectivity to measure pervasiveness by asking:

Would any ordinary employee in similar circumstances find that this behavior creates a hostile work environment?

 

 

3. It’s Severe


Behavior that creates a hostile work environment needs to be objectively severe to warrant legal action. The actions, behavior, or communications of a person in the workplace must seriously disrupt and negatively affect the employees work.

It may be severe in the sense that it interferes with career progress, by pushing the employee to avoid the workplace, call in sick, or underperform from stress.

Severe is subjective, though, which makes the situation difficult to gauge. An important distinction is that the law isn’t meant to protect against casual teasing, blunt comments and minor, isolated incidents.

 

4. It’s Unwelcome


Like all forms of misconduct, inappropriate behavior and harassment, the incident needs to be unwelcome.

There typically needs to be some form of proof that the victim asked the hostile individual to stop but the behavior continued (such as reaching out to Human Resources to report the behavior).

This is a surefire sign that the conduct was unwelcome.

You need the right tools at the right time to support your employees. Here’s an incident report template.

 

5. In Some Cases: It’s Large-Scale


Most successful hostile work environment lawsuits tell a similar tale.
Large-scale bullying that creates a hostile work environment may also be valid in court thanks to the 1935 National Labor Relations Act (NLRA).

Employee rights are protected by the NLRA, including the ability to curtail private sector labor and management practices.

Section 7 of the NLRA says that:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

This means that employees of privately-owned companies have additional rights encouraging them to address unethical, unsafe work conditions. And, if they do so, they are legally protected against retaliation.

 

Four Questions to Ask

Most successful hostile work environment lawsuits tell a similar tale.

  1. Were the incidents unwelcome?
  2. Were the incidents discriminatory towards a protected class?
  3. Did the incidents occur repeatedly over a period of time?
  4. Was the incident both objectively and subjectively hostile?

If the answers to these are all yes, you might be at risk of a lawsuit.

Code of conduct on an office table.

 

How Much Does It Cost a Company?

When Employee #1 is off making sexist comments towards Employee #2, not only is productive work time lost, but Employee #2 might take stress leave, use sick days to stay home and avoid the bully, file a workers’ compensation claim or even be pushed into resignation.

A recent study by Harvard Business School found that toxic workers cost companies more than $10,000 in employee turnover alone.

On top of that price are litigation costs, regulatory penalties and reduced employee morale (more sick days and less work done).

Not only is there a monetary price to pay, hostile behavior at work causes dangerous levels of stress, sometimes leading to severe illnesses.

 

Is Hostility at Work Common?

There is a series of trends that seem to arise from studies like these.
According to a 2015 study conducted by Rand Corp., Harvard Medical School and the University of California, nearly 20% of employees have been exposed to a hostile work environment.

This includes things like verbal abuse, sexual harassment, threats, humiliating behavior and bullying.

 

Nearly 1 in 5 has been exposed to a hostile work environment

 

There is a series of trends that seem to arise from studies like these.

 

Individual Trends

Less educated workers, those who deal directly with customers, and younger workers are more likely to experience harassment at work.

Men are more likely to experience verbal abuse and women are more likely to experience unwanted sexual attention.

 

Career-based Trends

Certain industries and career paths are more affected as well. Nurses experience a great deal of hostility from stressed patients and even other nurses.

The fast-paced and competitive nature of law firms and sales companies seem to attract certain (hostile) personalities.

 

Can Social Media Contribute to a Hostile Office?

Widespread social media use has significantly impacted how we understand harassment and hostile work environments.

Social media websites have provided a new opportunity for self-expression, including negative expressions of harassment and discrimination.

Former hostile work environment cases that have been brought up include: setting up a Facebook group to shame a colleague; posting inappropriate photos of a colleague; and sending repeated, uninvited Facebook chats.

One way to better protect a company from social media harassment claims is to implement a coherent social media policy.

A social media policy can do more than prevent harassment between colleagues. Find out what other useful things you can address with this Social Media Policy Checklist.

Also, remind management that negative behavior is the same whether it took place online or offline. Deal with social media harassment the same way you deal with all other harassment.

 

Man leaving job. What is unemployment discrimination?

 

Case: Benny Boyd Auto Group

Hurst held on until November 2012 when he resigned.
In 2015, Benny Boyd Auto Group was found guilty of discriminating against a disabled employee and subjecting him to a hostile environment at work.

Five years earlier, in December 2010, Randall Hurst was offered a position as General Manager of the Benny Boyd dealership in Lubbock, Texas.

In addition to an impressive salary, the company promised Hurst that he would receive a partnership role. As a partner, Hurst would have a stake in the store and receive additional compensation for good performance.

 

Randall Hurst’s Diagnosis

Nearly six months later, in May of 2011, Randall Hurst was diagnosed with multiple sclerosis (MS) and his medical condition was disclosed to upper management.

Hurst carried on working with the disease for about a year, until March 2012, when he began asking about the promise to be a partner. He was met with hostile comments about his disability and threats about his future with the company. His supervisor allegedly asked:

Are you a cripple?

And warned:

You’re on your last quarter, buddy, since you have MS.

Hurst held on until November 2012 when he resigned.

 

After the Resignation

Hurst informed the U.S. Equal Employment Opportunity Commission (EEOC) of the harassment, denial of partnership, and constructive discharge. After investigating, the EEOC made a claim against Benny Boyd Auto Group for disability discrimination.

In February 2015, Hurst won the settlement.

The dealership in Lubbock is no longer in business and has been removed from the company website. Before returning to business in the area (if they ever do), the company must:

  1. Modify its anti-harassment policy to include disability discrimination
  2. Provide training on disability discrimination laws
  3. Post a formal notice prohibiting disability discrimination in the workplace

 

Two speech bubbles of investigation allegations

 

Eliminating Hostile Behaviors

Employers run the risk of employees filing lawsuits against them for failing to fix a hostile atmosphere caused by an employee, or even fostering one themselves.

If an employee finds that someone else’s behavior is creating a hostile environment for them, it’s best to address the issue early before things get out of hand.

 

Is an Employee the Problem?


A workplace should be well-equipped with in-house resources. In many cases, the offending employee doesn’t know that their behavior has offended the victim. Issues like these are relatively simple to resolve.

Approach the situation by clearing the lines of communication.
Employees should be given the opportunity to report any issues they’re having with other colleagues, and they should feel confident that their complaint will be taken seriously.

Approach the situation by clearing the lines of communication. Explain that the harassers behavior is offensive, inappropriate, or discriminatory.

Explain that their behavior has someone else uncomfortable and won’t be tolerated in the workplace.

 

Disciplining an Employee?

If problems escalate and an employee takes another colleague to court, the employer can be held liable for not protecting the employee. A Disciplinary Action Form is the documentation and proof you need.

Download the Employee Disciplinary Action Form Template

Is Management the Problem?


If a hostile working environment is being encouraged by senior-level staff, the best way to approach the situation is by changing the culture of the company.

Encourage change by:

  • Implementing training focused on the many types of discrimination
  • Implementing training focused on hostile work environments in general
  • Building and strengthening relationships through company events
  • Developing strict policies and guidelines concerning behavior at work (such as a Code of Conduct)
  • Enforcing these policies – don’t let them collect dust

 

The Best Way to Stop Hostility at Work Right Now?


Nip it in the bud.

The Department of Labor found that the most effective way to reduce harassing and hostile behavior is to categorize it as misconduct. Eliminate the behaviors or actions before they become severe and long-lasting enough to violate the law.

Learn a lesson from the Benny Boyd Auto Group and fix the situation before it escalates.


Katie Yahnke
Katie Yahnke

Marketing Writer

Katie is the marketing writer at i-Sight. She writes on topics that range from fraud, corporate security and workplace investigations to corporate culture, ethics and compliance.

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