Editor’s note: The Back to Basics column serves as an accessible way to understand employment law. If you’re new to HR (or just need a little refresher), follow along as the HR Dive team speaks with legal experts, peruses federal guidance and lays out the basics of federal employment law. Feel free to send tips, questions and feedback to [email protected].
A Black maintenance worker alleged he’d been addressed with a racial slur as a “term of endearment” and had grease poured on his car.
A Black parts mechanic alleged his supervisors denied him overtime because of his race.
A Hispanic employee allegedly was scolded by his supervisor for not knowing Spanish.
In all of these cases, courts ruled the allegations did not amount to a hostile work environment argument.
Larry Weisberg, a partner and owner at Weisberg Cummings, a law firm that represents employees and employers, recently explained to HR Dive what exactly constitutes a hostile work environment under the law.
For starters, hostile work environment claims can be made under three federal laws: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act.
The U.S. Equal Employment Opportunity Commission defines a work environment as hostile when harassment occurs that is “severe or pervasive enough” that a reasonable person would consider it hostile. “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality,” EEOC said.
The key is that the harassment has to be because the worker is part of a protected class, such as race, age or sex, Weisberg said. And that harassment must be both objectively and subjectively hostile, he said.
Where challenges arise
For an employee to prove a hostile work environment exists, the employer has to know about the behavior and be given an opportunity to address it, Weisberg said.
“Until the employer is aware of it, they aren’t going to be held liable for that conduct,” he said.
That gets tricky because workers are often afraid to say anything and risk retaliation, he said. Because even though retaliation for making a good-faith report is illegal, that doesn’t mean it won’t happen, Weisberg explained.
“In real life, if they fire you and you’re without a job, that’s a tough situation,” he said. “You might have another claim, but you’re without a job in the meantime.”
Sometimes, workers can get away with not reporting the behavior if it’s clear an employer had to know about it or it happened in front of a manager, he said. But employers also can deny knowing about the behavior, especially if there’s not a report in writing. Then, it becomes a “he said, she said” situation, Weisberg said.
“The burden of proof is always on the employee,” he said.
Employers aiming to root out and prevent hostile work environments should focus on both employee and manager training, as well as creating a culture where employees feel safe to raise concerns, according to EEOC — and an accessible and widely publicized reporting mechanism can help employers address any incidents that do occur.