This article is part of our ongoing HR Scenario Series by our National HR Client Service Manager, Kim Schaff, SHRM-SCP, PHR. In each of these articles, Kim will walk you through a real-life HR scenario and break down how this situation should be handled and all the ins and outs of the rules and regulations that impact the scenario.
For this week’s scenario, let’s take a look at what legally constitutes a “hostile work environment” and some common misconceptions about this issue.
Say a company has received complaints from employees that a specific manager is abrasive and rude. This manager has gone as far to yell, curse, and even insult employees for their work, telling them to work faster.
So, does this manager’s behavior constitute a hostile work environment?
Possibly, but not necessarily. Many employees believe that a bad boss, an unpleasant work environment, a rude co-worker, failure to qualify for a promotion, or a lack of perks or benefits can create a hostile work environment.
If I had a dollar for every employee who has filed a complaint with HR alleging they are victim of a hostile work environment, when really, they just needed to take their concern to a member of management/HR to be addressed, or possibly even to evaluate whether they wanted to seek out a new employer, I’d probably have enough saved to go on vacation!
What are the Legal Requirements for a Hostile Work Environment?
The reality is that for a workplace to be “hostile” certain legal criteria must be met.
First, a boss or co-workers actions, communication, or behavior must make doing your job impossible. This means that the behavior altered the terms, conditions and/or reasonable expectations of a comfortable work environment for employees.
However, meeting this first qualification is not enough. Additionally, the behavior, actions or communication must be discriminatory in nature. So, a supervisor who talks loudly, is abrasive, or rude may be demonstrating inappropriate behavior, but it does not create a hostile work environment.
On the other hand, a coworker who tells sexually-explicit jokes would likely be guilty of sexual harassment and creating a hostile work environment. A boss who verbally berates you about your age, religion, gender or race may also be guilty of creating a hostile work environment, even if the comments are casual, said with a smile or played as a joke.
In our scenario, what we have is what you might call an “equal opportunity harasser.” He’s yelling at everyone, not discriminating against a particular group. Being a jerk isn’t against the law.
While the behavior is clearly inappropriate and should be addressed by the individual’s supervisor, inappropriate workplace behavior crosses the line into “hostile work environment” only if it is based on a protected trait.
Further Legal Requirements
- The actions or behavior must discriminate against a protected classification, such as age, religion, disability, or race.
- The behavior or communication must be pervasive, lasting over time, and not limited to an off-color remark or two that a coworker found annoying. These incidents should be reported to Human Resources or a member of management for needed intervention.
- The problem becomes significant and pervasive if it is all around a worker, continues over time, and is not investigated and addressed effectively enough by the organization to make the behavior stop.
- The hostile behavior, actions, or communication must be severe. Not only is it pervasive over time, but the hostility must seriously disrupt the employee’s work. The second form of severity occurs if the hostile work environment interferes with an employee’s career progress.
For example: The employee failed to receive a promotion or a job rotation as a result of the hostile behavior.
- It is reasonable to assume that the employer knew about the actions or behavior and did not sufficiently intervene. Consequently, the employer can be liable for the creation of a hostile work environment.
What is the liability to the Employer?
In many cases, a hostile work environment is created by an employer, supervisor, or business owner. In such cases, the employer is presumed liable to a victimized employee for an actionable hostile environment created by a supervisor.
There are clear instruction on how to overcome this presumption of liability. If heeded, these actions can help employers to provide an affirmative defense and possibly not be held liable for supervisor harassment.
The employer must prove both:
- That the employer exercised reasonable care to prevent and promptly correct harassing behavior; and
- That the complainant unreasonably failed to take advantage of the preventative and/or corrective opportunities provided by the employer.
In reality, this means all employers should establish and train employees on an anti-harassment policy with clear complaint procedures and when a complaint is made pursuant to those procedures, follow the tried and true advice below. If employers follow these guidelines they should have a defense to liability in supervisor harassment cases.
One caveat this affirmative defense is only available to employers when no tangible, adverse employment action has been taken against the complainant. If such an action has been taken, all bets are off and the employer is presumed to be liable without access to the affirmative defense described above.
How should we handle complaints?
1. Treat each complaint seriously.
It may be tempting to dismiss complaints that may seem minor or inoffensive to you. Don’t do it. You never know if the complainant is telling you the full story, or if other, more serious allegations are waiting to be told. In addition, failing to look into a report of workplace harassment will negate certain defenses if the complainant decides to file a lawsuit.
2. Conduct an investigation.
For more information about conducting an investigation, contact your Client Services Coordinator at Employers Resource.
3. Take action to stop inappropriate behavior.
Whether the behavior rises to the level of creating a hostile work environment or not, take action to stop it. Talk to the person acting inappropriately and explain that conduct such as touching and making comments about other employees’ looks leads to an uncomfortable work environment and must cease.
Follow up with the complainant to make sure that he or she is not experiencing further inappropriate behavior or retaliation. Nip this kind of conduct in the bud so that mere uncomfortable behavior does not escalate to unlawful harassment.
4. Train supervisors and employees annually.
Conduct annual training on sexual harassment and other in appropriate workplace behavior in order to educate your workforce on your harassment policies and complaint-reporting procedures. Uses training sessions to reinforce your commitment to keeping your company free of discrimination and retaliation.
Make sure managers and supervisors are trained to recognize and respond to complaints of workplace harassment. Contact your Client Service Coordinator at Employers Resource for training options.