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
Updated to reflect forthcoming law limiting the use of nondisclosure agreements for certain claims.
The Dallas Mavericks basketball team fired its head of human resources in the wake of a Sports Illustrated report detailing a hostile work environment in its front office. The report cited numerous complaints of a sexually hostile work culture by current and former staff members, both male and female, who pointed to the team's HR department as part of the problem.
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.
The 9th Circuit Court of Appeals has ruled that unwelcome workplace hugs may give rise to a sexually hostile work environment under Title VII of the Civil Rights Act. The case is a reminder of the boundaries between appropriate and inappropriate workplace conduct.
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.