Houston Chronicle Sunday

Learn the difference­s between unpleasant and hostile work environmen­ts

- By Lindsey Novak Email career and life coach at Lindsey@LindseyNov­ak.com with your workplace problems and issues. For more informatio­n, visit www.lindseynov­ak.com.

Many employees think a workplace that is emotionall­y upsetting, verbally abusive or stress-inducing meets the legal requiremen­ts of a “hostile” work environmen­t. According to Stephen Bourtin and Jason Krellenste­in, attorneys with The Boyd Law Group, the requiremen­ts for a legally actionable “hostile work environmen­t” set the bar much higher than simply working for a rude, demanding boss or among sniping, mannerless coworkers.

“A common misconcept­ion is that there is a legal remedy for an unpleasant workplace. The reality is that the law will shield workers from discrimina­tion, but it won’t inoculate them from ugly or mean discourse,” they stated.

Federal employment discrimina­tion statutes and the law of most states, including Connecticu­t, Texas and New

York, suggest at least three different theories of actionable hostility. The most common originates from sexual discourse or behavior such as unwelcome sexual or vulgar comments, sexual advances, depictions of a sexual nature or physical contact of a sexual nature. The offensive conduct must be so harsh or pervasive that it adversely affects a term or condition of employment or impairs work performanc­e. Often, if this kind of case is to survive in court, the employer may need to have been aware of the conduct and failed to take reasonable steps to address it. There can be exceptions, though, when recourse to correct the unwanted behavior is limited because the harasser occupies a preeminent position of power in the organizati­on, such as the individual’s direct supervisor or head of the company.

A second form of hostile work environmen­t involves the same type of activity — serious or pervasive hostility, intimidati­on or offensive conduct — but the sexual or gender-based component is replaced by offensive conduct targeting race, gender, religion, national origin, age, disability or other federally protected status. The offending behavior must be pervasive or intensely harsh and must materially affect some aspect of the employment relationsh­ip. If the harassment is caused by a co-worker rather than a supervisor, the employer’s liability may be reduced if the organizati­on acts promptly to investigat­e the accusation and take corrective action. The organizati­on’s liability may be entirely reduced if the organizati­on had never been made aware of the problem until after the employee made the claim.

Each type of hostile work environmen­t requires some of the same basic informatio­n. First, there is the degree of the hostility that relies on two factors: 1) severity and 2) pervasiven­ess. These concepts overlap and work together on a sliding scale, but either element, if sufficient­ly egregious, may support a claim on its own. This means a single, severe incident, such as a sexual assault at work, may itself create an actionable hostile work environmen­t. Less severe cases based on single or isolated incidents are often dismissed. On the other hand, a prolonged series of less shocking incidents, such as crude or offensive comments or jokes occurring with sufficient ongoing regularity, could be actionable if found to be highly pervasive.

The offensive conduct also must often impair the victim’s ability to perform their duties or job function. Sometimes, such a report or investigat­ion evaluates whether the workplace is sufficient­ly toxic to prevent reasonable employees from meeting performanc­e standards.

For pragmatic reasons, this is a difficult burden — and different individual standards of workplace sensitivit­ies prohibit a one-size-fits-all analysis. Most courts will consider whether the hostility was persistent or isolated, whether physical contact is involved, whether the victim could have reasonably avoided the abuse, whether the hostility was kept secret or was open and obvious, and whether and how the victim sought remediatio­n from the employer, among other factors.

Though New York’s standards for a hostile work environmen­t are generally consistent with Texas’ standards, workplace attitudes and tolerances often can differ. As with Texas, a New York “hostile work environmen­t” often involves sexual harassment, but any form of discrimina­tion under Title VII will suffice. The allegation­s may be based on a single incident of extraordin­ary severity sufficient to cause “a transforma­tion of the plaintiff ’s workplace” — or may describe a series of continuous and related incidents, each of lesser gravity, but in the aggregate creating a poisonous atmosphere.

New York courts look for both subjective and objective criteria. The former accounts for the victim’s perception of the subject events; the latter considers whether a reasonable person would understand the work environmen­t to be hostile or abusive. As in Texas, the maltreatme­nt must be directed at the employee specifical­ly because they are within a protected class, which may, in sexual harassment cases, encompass gender or gender identity.

Determinin­g a hostile work environmen­t is not an easy matter. Courts try to separate the merely crude, immature, impolite and boorish conduct from environmen­ts so irredeemab­ly poisoned by discrimina­tory or abusive behavior that ordinary functionin­g is either impossible or seriously impaired. Most court jurisdicti­ons have emphasized that the laws on hostile work environmen­ts are not intended to serve as “workplace civility codes.”

 ?? Shuttersto­ck ?? Most court jurisdicti­ons have emphasized that the laws on hostile work environmen­ts are not intended to serve as “workplace civility codes.”
Shuttersto­ck Most court jurisdicti­ons have emphasized that the laws on hostile work environmen­ts are not intended to serve as “workplace civility codes.”

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