As workplace investigators, we are often contacted after an employer receives an employee complaint alleging that the employee is experiencing a “hostile work environment.” However, the term is often used in a way that is inconsistent with what the law recognizes as a “hostile work environment.”

We’ve encountered many instances of the term being used during or after an uncomfortable interaction at work, or to describe the work environment created by an off-putting coworker or supervisor. However, not all unpleasant situations qualify as a hostile work environment, nor is a work environment hostile by virtue of having an offensive or rude coworker or supervisor. Rather, the conduct and/or treatment must be related to a protected characteristic and be severe or pervasive enough to create what the law recognizes as a hostile work environment.

What Actually Constitutes a Hostile Work Environment?

In daily parlance, the word “hostile” connotes offensiveness and antagonism. In the workplace, “hostile” often refers to behaviors or conditions that create an intimidating and oppressive work environment for the affected employee(s). “Hostile” conduct often impedes the normal and healthy functioning of a workplace and possibly even the well-being of the employees.

Legally, however, the definition is much more restricted as well as multi-layered. To constitute a hostile work environment under the law, the conduct must be:

• Severe or Pervasive:

• Severe: The offensive behavior must be egregious enough to create a threatening or intimidating work environment.

• Pervasive: The conduct must be ongoing or repeated, and not be isolated incidents.

• A reasonable person would find the conduct and/or treatment to be hostile, intimidating, offensive, oppressive, or abusive.

• Harmful to the employee: The behavior must interfere with an employee's ability to perform their job duties.

• Based on protected characteristics: In California, protected characteristics include:

• Race

• National origin

• Religion or creed

• Age

• Disability, mental and physical

• Sex, gender (including pregnancy, childbirth, breastfeeding or related medical conditions)

• Sexual orientation

• Gender identity, gender expression

• Medical condition

• Genetic information

• Marital status

• Military or veteran status

Examples of a Hostile Work Environment Include:

• An employee repeatedly and consistently makes offensive jokes towards an LGBTQ+ co-worker on the basis of that co-worker’s sexual and/or gender identity.

• An employee constantly belittles a disabled co-worker and/or excludes them from workplace-related activities due to their disability.

• An employee displays racially, religiously, or sexually offensive paraphernalia in their cubicle.

Not Legally a Hostile Work Environment? It’s Still Valuable to Investigate!

Even if a complainant does not allege behavior meeting the legal definition of a hostile work environment, there can still be benefits to conducting a workplace investigation, including:

• Investigating a valid complaint shows the employee that their concerns are taken seriously, and helps promote employee morale. Also, immediate and proactive steps taken to address employee concerns will help create a safe, trusting work environment for all employees, improving employee retention in the long run.

• Investigating the complaint can prevent issues from escalating in the future into a much more serious and potentially legally actionable situation.

• A thorough investigation can help uncover other underlying issues creating conflict in the workplace that may not be immediately evident, with the added benefit of helping employers identify solutions to resolve the underlying issues, such as providing coaching, conducting workplace mediations, providing training, and finetuning company policies.

• An investigation can help protect the employer from future liability by providing documented evidence that the employer takes employee concerns seriously and acts upon them.

Stay Tuned for Part Two

In our next blog, we will delve into how to prevent hostile workplace environment complaints, as well as the processes to use to investigate them.

Maier Law Group regularly assists employers with workplace investigations and DEI trainings, as well as workplace mediations. Please reach out if we can help you further demystify the legalities of a hostile work environment complaint.

Author: Margarita Wear, Partner. Margarita conducts workplace investigations, counsels clients managing internal investigations, and provides advice and counsel to businesses of all sizes. Margarita’s investigation practice includes both workplace and educational institution (Title IX) investigations, and she has completed a 40-hour mediation training.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.