So, Your Workplace Is Hostile? Maybe, Maybe Not

While some of us work with fair and temperate supervisors/coworkers, this is certainly not true for everyone. Far too many employees experience daily insensitivity from supervisors or coworkers, in the office or remotely. These unfortunate workplace situations can be so impactful they manifest emotional – even physical – issues. In many such cases, those employees impacted by these words/deeds believe they work in a “hostile work environment.” While there is such a thing, the determination of whether a particular environment is legally hostile, permitting the employee to seek relief through an EEO complaint or charge, is complicated.

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).

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

When evaluating whether your 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 your identity, i.e., to your protected status. Insensitive remarks, for example, do not necessarily establish a hostile work environment. The words or behavior must bear a relationship to your protected class, i.e., gender identity, sexuality, race, age, and/or physical/mental health. Sorry to say, but a micro-aggressive supervisor criticizing your politics in an offensive manner is not sufficient, unless the comments also relate to your protected status and interfere with your job performance.

The 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 frequency or severity of the alleged discriminatory conduct, whether the words/conduct were physically threatening or humiliating and unreasonably interfered with your 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’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. Even the EEOC 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. See Lassiter v. Dept. of the Army.

So, to answer the question in the title, “Is your workplace hostile,” the answer is maybe; it is certainly not as simple as you may have originally thought, or as the definition of the word suggests.

This article was also published by SHRM on August 19, 2022.