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What Constitutes a Hostile Work Environment?

 

Is my boss just a jerk, or can I sue?

As an employment attorney, I find the one workplace legal issue people are most confused about is what constitutes a “hostile work environment.” Potential plaintiffs often regale me with stories of an abusive boss creating a hostile work environment, thus infringing on their employment rights. I explain, over and over again, that there is no cause of action for dealing with a boss who is a jerk. I should say that again: no matter how impaired your boss is in being a decent human being, you cannot sue her or him for that alone.

Hostile Work Environment

A hostile work environment is created when someone is harassed either based on race, sex, or some other protected characteristic (age, sexual preference, ability, ethnicity, etc.) to the extent that the work environment becomes pretty much unbearable. The term "hostile work environment" evolved in the judicial system to distinguish between a single incident of sexual harassment, for example, and ongoing sexual harassment that an employer has the opportunity to prevent and correct.

There was a clip from the popular TV show The Office” that included a classic example of blatant sexual harassment that would likely not be actionable because it can be isolated into a single incident. On TV shows when we see this, we might be alarmed. Contrast that with a pattern of conduct like on a TV show, but in a real work environment where harassment happens on a daily or weekly basis. Ongoing improper conduct based on a protected characteristic is something an employer has a duty to investigate, correct, and prevent. Failure to do so results in liability for the employer.

On the other hand, if the work environment becomes unbearable because your boss is generally abusive, this is not actionable. In other words, if your boss says something as egregious as, “You are the worst and most disgraceful employee I have ever seen, and I don’t know who in their right mind would work with you,” this is not actionable. Even if your boss throws in more colorful language, it is not actionable. Only if your boss says, “You are the worst and most disgraceful ‘old/person of color/gay, etc.’ employee I have ever seen…” are you potentially dealing with actionable conduct.

Think about it logically. If the courts tried to intervene in every case in which a manager or co-worker was abusive or hostile, the judicial system would be even more clogged up than it already is. Instead, the courts have decided to get involved only in the most egregious cases of abuse, those involving pernicious classifications whose existence have led to things like violence, systematic discrimination, and denial of civil rights against the groups that are so classified.

Ongoing improper conduct based on a protected characteristic is something an employer has a duty to investigate, correct, and prevent. Failure to do so results in liability for the employer.

This is not to say employers should not investigate misnamed “hostile work environment” cases. On the contrary, investigating cases of manager or co-worker abuse can empower the complaining employee/s, and perhaps prevent potentially actionable conduct by the wrongdoer down the road. Employers should investigate anything that rises to the level of concerning conduct because it makes sense economically and socially. But they should also realize that if they are sued based on the antics of a garden-variety dysfunctional boss, they will likely prevail in a court of law.