Hostile Work Environments
There are four legal elements to a Hostile Work Environment (“HWE”): (a) the employee was subjected to unwelcome harassment; (b) the harassment was based on the employee’s race, gender, disability, age, religion or national origin; (c) the harassment was objectively and subjectively sufficiently severe or pervasive to alter a term or condition of employment; and (d) there exists some factual basis to impute liability on the employer.
Most important, the reason behind the harassment must be a protected, legal basis. Congress passed the Civil Rights laws not because it wanted to stop all kinds of harassment in the workplace. Instead, the harassment and discrimination that Congress sought to end involves adverse conduct based upon an employee’s race, national origin, gender, age, disability or religion.
Generally speaking, you also have to complain about the hostile work environment because that places the employer on notice of a duty to stop it. An employer is not liable for every single action one of its employees takes, even if that action is racist, mean, offensive, anti-Semitic, you name it. The employer’s only liable if it had reason to know it was going on and allowed it to continue.
The first time harassment occurs, you should complain to your employer. Not to pursue a hostile work environment lawsuit, but to place the employer on notice that if the harassment continues because the employer didn’t stop it, you then have a viable Title VII discrimination case based on hostile work environment.
This is a common mistake people make. They don’t complain. Of course, when I recommend complaining, I mean complain in writing, where there is a record of your complaints. Otherwise, a Judge and jury may not believe you complained. You always want to avoid trials in which key evidence comes down to one guy’s word against someone else’s. If you don’t complain in writing, it’s much harder to win.
Also, the hostile work environment must change the conditions of employment in a practical way. It’s the very rare case where one or two racially offensive comments is enough of an environment for a Judge to consider that hostile. However, if you’re on the receiving end of those comments – absolutely complain! Because if the employer does nothing and they keep happening, at that point you may very well have a case.
Some of the best cases we’ve had are where the employee’s original discrimination complaint didn’t have legally sufficient facts to support a hostile work environment case, but after the employee complained and bad things happened to that employee (s)he sure a good case at that point. As I tell my clients – you only have to win once and I’ve never had a client complain about how (s)he won.