So When is A Hostile Work Environment Illegal?

Learn About Hostile Work Environments and When They Are Considered Illegal

Many people have heard the terms “hostile work environment” and “harassment” used to describe a workplace.  Although these terms are often heard, they are frequently misunderstood in the legal context. Specifically, many people think that there is a law against hostility and harassment in the workplace.

Frequently this is not the case.  At some point or another, everyone is going to experience irritations or personality conflicts in the workplace which do not break the law.  Some individuals may be bothered by a boss who occasionally yells at subordinates, or a receptionist who refers to everyone, male or female, as sweetie.  For that matter, to some living in the State of Ohio a Michigan poster in your break room would constitute hostility.  The things described above might be obnoxious or annoying (especially the Michigan poster), but they are probably not illegal.

While there is no general law against harassment or hostility in the workplace, employees do have the right to be free from unwanted, discriminatory harassment which causes a work environment to become hostile.  Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and Ohio law all offer protection for employees against harassment/discrimination based on sex, gender, race, national origin, religion, age and disabilities.  If harassment is motivated by an illegal discriminatory intent and is serious enough, it may well be illegal.

To better explain this concept, we can use the examples of individuals bringing Nazi paraphernalia into the workplace to intimidate Jewish employees, or hanging nooses in an African-American’s office space with the hope of making them quit (and sad to say, things like this really do happen even in 2017).  Because the conduct is motivated by illegal discrimination – religion and race, respectively – it will likely constitute illegal workplace harassment.

Another example is sexual harassment.  Most people know that constantly making offensive sexual comments to female employees in the workplace or propositioning a female subordinate for sex employees is illegal.  What makes these things illegal, though, is their discriminatory origin – this is being done only to women and not to men (although it is possible for men to be the victims of sexual harassment as well).

Even if workplace harassment is illegally motivated, it is still not always enough to file a lawsuit.  These Acts are not a guarantee that one will never be offended by an offhand remark at the water cooler.  According to the Equal Employment Opportunities Commission, harassment becomes unlawful where:

• Enduring the offensive conduct becomes a condition of continued employment, or

• The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Breaking this down, if submitting to or enduring harassment/discrimination of the type listed above is required in order to keep your job, this is unlawful. For example, your supervisor cannot require you participate in specific religious activity if you want to keep your job or threaten you with termination unless you go on a date with him. Accepting unwelcome conduct cannot be a condition of your employment.

Secondly, unwanted harassment can be illegal if it is so severe or pervasive that a typical person would find the work environment to be polluted by the conduct to the point where it affects a victim’s ability to work.  In the legal context, this is what we mean when we refer to a hostile work environment.  Some conduct is so offensive that a single act (physical groping or nooses in the workplace for example) might create a hostile work environment.  One instance of other conduct, such as offensive sexual banter, might not be enough to create a hostile work environment.  But if the conduct happens frequently enough it can pollute the work environment to the point where an illegal hostile work environment is created.

If you are dealing with an illegal hostile work environment, you may have an obligation to make a complaint to your employer and give them an opportunity to fix the problem before you file a lawsuit.  Once employers have notice of such workplace conduct, they are required to take effective steps to make the conduct cease.  Frequently, employers provide their employees with a complaint mechanism in their employee handbook or in other written policies given to employees.  If your employer has such a policy, you should attempt to follow it as closely as you can.

You have a right to a workplace which is free of illegal harassment.  Failing to put an end to harassment in the workplace can expose an employer to significant damages.  If you are suffering from such harassment and your employer is not doing anything about it, you should speak to an attorney to consider your legal options.

Sam Schlein is an associate with the law firm Marshall Forman & Schlein LLC. He represents individuals in a wide range of employment issues.