Overview: To establish a hostile work environment under Title VII and other federal antidiscrimination laws as well as under applicable state and local laws, an individual must prove that he or she is subject to unwelcome conduct based on the individual's gender or other protected characteristic.
A hostile environment can be created by verbal conduct or non-verbal conduct.
The individual must show that the conduct is sufficiently severe or pervasive such that it actually alters the conditions of the victim's employment and creates an abusive and hostile working environment.
However, an employer should understand that the prohibition against a hostile work environment does not establish a general civility code in the workplace. Therefore, simple teasing, offhand comments and isolated incidents (unless extremely serious) will not constitute a hostile work environment.
Evaluating whether an environment is sufficiently hostile or abusive requires an evaluation of the totality of the circumstances.
In order to eliminate a hostile work environment, an employer should develop policies and practices aimed at eliminating abusive and harassing conduct based on an individual's membership in a protected class.
An employer should also provide employee training and development to all employees and supervisors so they know how to identity and report instances of a hostile work environment.
Further, an employer should institute an effective complaint procedure that permits victims to bring complaints and should promptly respond to all complaints by conducting a thorough investigation, taking corrective measures, and imposing discipline if needed.
Trends: In Vance v. Ball State University, 570 U.S. (2013), the Supreme Court issued a critical decision which makes it more difficult for employees to prove that an employer is vicariously liable for a supervisor’s discriminatory or harassing conduct. Specifically, the Court held that a supervisor must be someone with the direct power and authority to take tangible employment actions against an employee. This issue is of primary importance when determining whether an employer is vicariously liable for a supervisor's actions in cases of harassment. Under the current law, if the harasser is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the harasser is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment in order to be liable. This is a much higher burden to meet.
Author: Beth P. Zoller, JD, Legal Editor
California employers must cover abusive conduct in their supervisor harassment prevention training programs effective January 1, 2015, under a state law enacted last week.
In-depth review of the spectrum of Arizona employment law requirements HR must follow with respect to EEO - harassment.
As mandated by the West Virginia Division of Personnel, state government agencies must post the West Virginia Prohibited Workplace Harassment Poster.
A new law (S.B. 292) amends the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not need to be motivated by sexual desire and suggests it can be motivated by any number of factors, including lust or hostility.
The California EEO-Harassment section of the Employment Law Manual has been updated to include an amendment to the California Fair Employment and Housing Act (FEHA), which clarifies that sexually harassing conduct need not be motivated by sexual desire.
This How To details the steps a prudent employer should take when faced with a harassment complaint.
In Vance v. Ball State University, 2013 U.S. Lexis 4703, the Supreme Court considered how much authority an employee needs to exert to be considered a supervisor for purposes of vicarious liability under Title VII of the Civil Rights Act.
The Tennessee Employment At-Will and Terms of Employment sections have been updated to reflect a discussion of the intentional interference with employment cause of action available to employees, illustrated in a recent case decided by the Tennessee Court of Appeals.
Internal investigations are one of the employer's most effective tools to respond to complaints of discrimination, harassment, waste, theft, fraud or other misconduct. This checklist can assist you in deciding whether to investigate, crafting the investigation to be effective, and producing useful results.
XpertHR has updated the Litigation section of the Investigations and Litigation chapter to reflect two recent federal court rulings pertaining to employer obligations in discrimination cases brought by the EEOC and litigation tactics when employers are accused of fostering hostile work environments.
HR guidance on how to create and implement policies and practices that prevent and respond to allegations of a hostile work environment.