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: From government to entertainment to Fortune 500 companies to the media to the halls of Congress, it seems that sexual harassment has become an even greater risk for employers as the issue has boiled up and come to the forefront in recent months particularly with the #metoo and #timesup movements. Therefore, it is critical for an employer to understand that it must work to eradicate sexual harassment and all forms of harassment based on any protected class from the workplace because the employer has so much at stake. It is important to hold all individuals in the organization to the same standards of conduct and make sure that no one — not a manager, supervisor or owner — should be provided with special treatment. It is no longer possible to maintain a culture of silence and complicity and there must be a cultural shift in recognizing that there is no place for harassment at work.
Author: Beth P. Zoller, JD, Legal Editor
Updated to reflect amendments to sexual harassment prevention law, effective July 1, 2018.
Updated to reflect law limiting the use of nondisclosure agreements for certain claims, effective June 7, 2018.
XpertHR offers various tools and resources to assist an employer in understanding new harassment laws in New York State and New York City.
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Updated to reflect amendments to regulations addressing sexual harassment prevention training for supervisors, effective January 1, 2018.
Updated to reflect amendments to the Missouri Human Rights Act, effective August 28, 2017.
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Enhanced to improve the comprehensiveness, organization and scope of coverage.
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HR guidance on how to create and implement policies and practices that prevent and respond to allegations of a hostile work environment.