Viewpoint: So, Your Workplace Is Hostile? Maybe, Maybe Not

​While some of us work with fair and temperate managers and co-workers, this is not true for everyone. Far too many employees experience daily insensitivity from managers or co-workers, in the office or remotely. These unfortunate workplace situations can be so impactful they manifest emotional—even physical—issues. And in many such cases, those employees impacted by these words and deeds believe they work in a "hostile work environment."

Although there is such a thing, determining whether a particular environment is legally hostile, which would permit the employee to seek relief through an equal employment opportunity complaint or charge, is complicated.

Hostile Work Environment

The ordinary meaning of the word "hostile" is unfriendly, oppositional or antagonistic. Many would assume that a hostile work environment claim includes all unfriendly, oppositional or antagonistic workplace environments.

In truth, anti-discrimination laws were never meant to redress all workplace hostility. Instead, these laws provide specific remedies to employees and former employees who have endured severe or pervasive discriminatory speech or conduct. This protected class includes employees and former employees who have experienced workplace hostility based on their race, color, religion, sex (including pregnancy, sexual orientation or gender identity), national origin, age (40 or older), disability or genetic information (including family medical).

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Establishing that an employee's workplace is impermissibly hostile requires more than a single incident or occurrence of profanity, bias or divisive policies. The words or conduct must be repetitive or extreme. Moreover, the words or conduct must interfere with the employee's job performance.

When evaluating whether an employee's circumstances are sufficiently corrosive, consider whether the words uttered, the conduct or gestures engaged in, and/or the policies instituted by the perpetrator(s) are directed at and offensive to the employee's identity—that is, to their protected status.

Insensitive remarks, for example, do not necessarily establish a hostile work environment. The words or behavior must bear a relationship to the protected class, such as gender identity, sexuality, race, age, and/or physical or mental health. A microaggressive supervisor criticizing an employee's politics in an offensive manner is not sufficient, unless the comments also relate to their protected status and interfere with their job performance.

Supreme Court Guidance

The U.S. Supreme Court has weighed in on these questions. In Harris v. Forklift Systems Inc., the Supreme Court held that an employee may establish workplace hostility only when it is sufficiently severe or pervasive to alter the conditions of an employee's employment. Moreover, as the court noted in Faragher v. City of Boca Raton, "simple teasing, offhand comments and isolated incidents—unless extremely serious—will not amount to discriminatory changes in the terms and conditions of employment."

The "severe or pervasive" test measures the seriousness or frequency of the alleged discriminatory conduct, whether the words or conduct were physically threatening or humiliating and unreasonably interfered with an employee's work performance. As the court held in Harris, "[c]onduct that is not severe or pervasive enough to create an objectively hostile work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII [of the Civil Rights Act of 1964]'s purview." An isolated incident lasting only a few minutes, unless it is objectively outrageous, likely will not qualify as the type of conduct that alters the work environment.

Importantly, even in situations where profanity is used around or directed at an employee, courts will require some evidence that the profane comment referred to the employee's protected class. As the court explained in Faragher, Congress did not enact the anti-discrimination statutes to serve as civility codes, designed to protect employees against the ordinary tribulations of the workplace. The Equal Employment Opportunity Commission has recognized that personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment.

So the answer to the question "Is your workplace hostile?" is maybe: It is certainly not as simple as an employee may have originally thought—or as the definition of the word suggests.

Deborah L. Nixon is an attorney with the Kalijarvi, Chuzi, Newman & Fitch PC, a labor and employment law firm in Washington, D.C., that is committed to fighting for the rights of employees in the workplace. She can be reached at dnixon@kcnlaw.com.