Hostile Environments

Editor's Note: Know how to address and respond to hostile environment harassment.

Beth P. ZollerOverview: 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

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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.