Understand and Prevent Hostile Work Environments

Toxic workplaces might not be hostile work environments as defined by the law, but neither type of workplace should be tolerated, legal experts say. Here is an overview of how toxic workplaces can differ from hostile work environments and what benefits employers can reap through harassment prevention training.

Hostile Is More Than Unpleasant

Employees often mistake unpleasant bosses for the form of unlawful harassment known as a hostile work environment, noted James McDonald Jr., an attorney with Fisher Phillips in Irvine, Calif., and Tampa, Fla.

A boss can be tough without being a harasser, despite some workers thinking otherwise, observed Lori Armstrong Halber, an attorney with Fox Rothschild in Warrington, Pa., and Philadelphia.

“Employees often are surprised to learn that anti-harassment laws ban a rather narrow range of inappropriate conduct,” said Kathryn Brown, an attorney with Duane Morris in Philadelphia.

To impose liability on an employer for a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, Brown noted, an employee must show that they experienced conduct that:

1) Was unwelcome.

2) Was based on the employee’s protected characteristic.

3) Was sufficiently severe or pervasive to alter the employee’s terms and conditions of employment and create an abusive work environment.

4) Is imputable to the employer.

Hostile work environment claims are more common than “quid pro quo” (this for that) harassment claims. “The number of quid pro quo—‘have sex with me, and I will give you something,’ [or] ‘don’t have sex with me, and it will affect your job’—has dropped dramatically,” explained Deborah Petito, an attorney with Offit Kurman in Los Angeles.

Examples of Hostile Work Environments

According to Marissa Mastroianni, an attorney with Cole Schotz in Hackensack, N.J., examples of conduct that could rise to the level of a hostile work environment include:

• Repeated comments or jokes about a protected characteristic.
• Unwanted physical touching or advances.
• Displaying offensive symbols or images.
• Stereotyping an individual based on their protected characteristic.

“A single incident of extreme conduct could create a hostile work environment if it is severe, such as a physical assault,” said Alex Reich, an attorney with Saul Ewing in Chicago.

Toxic Work Environments Come with Legal Risks

A manager can legally play favorites or act unfairly, so long as the favoritism is not related to an employee’s race, age, religion, sex, or other protected status, Reich added.

A number of boorish, rude, or offensive actions might make a workplace toxic, but they don’t amount to a hostile work environment because there is nothing linking the actions to an employee’s protected status, Brown said.

“However, employers with toxic work environments are easy targets for litigation, regardless of the legal merit of the allegations,” she added. HR professionals “play a key role in fostering a workplace culture in which employees feel comfortable raising concerns about inappropriate conduct, even if the conduct does not violate the law.”

A boss’s equal-opportunity hostility isn’t without legal risk, Brown said. If HR becomes aware of an equal-opportunity offender, they should immediately address the matter, even if the behavior does not rise to the level of a legal violation.

Proactive Measures

Early intervention is key—it should occur when the first signs of trouble appear, said Robin Samuel, an attorney with Baker McKenzie in Los Angeles.

“HR should act quickly to ensure employees are complying with policies and complaints are taken seriously,” he said. “Always investigate, even if the complaining employee does not want to pursue the matter or asks for confidentiality. Don’t assume harassment has occurred without a proper investigation.”

Additionally, the parties involved should be treated respectfully. “That means investigating without judgment, keeping the information confidential, communicating the findings and proposed resolutions, and then maintaining contact with those affected by the situation to confirm everyone is moving forward and that there is no retaliation,” Armstrong Halber said.

Harassment Prevention Training

Harassment prevention training is beneficial in light of the U.S. Supreme Court’s Faragher-Ellerth cases, which provide employers with a defense against hostile work environment claims if an employer can, 1) show it exercised reasonable care to prevent and promptly correct any harassing behavior, and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm, Armstrong Halber said.

Many jurisdictions have harassment prevention training requirements, Petito noted, including California, Connecticut, Delaware, the District of Columbia, Illinois, Maine, New York, Virginia, and Washington state. Chicago and New York City have their own harassment prevention training requirements in addition to those in their respective states.

According to Petito, training can:

• Inform employees about, 1) the employer’s policy against discrimination, harassment, and bullying, 2)  the employer’s requirement that any discrimination, harassment, and bullying be reported, and 3) how to report it.
• Define harassment so that employees understand the meaning, which can reduce the number of claims being filed that do not meet those standards.
• Inform employees and supervisors about individual liability for engaging in harassment in states, such as California, where individual liability is an available remedy.