WORKPLACE BULLYING & HOSTILE WORK ENVIRONMENTS

The prevalence of bullying in the classroom, on the playground, and on the Internet is a serious issue facing many children and adolescents today.  But, this epidemic is not limited to teenagers and children.  It’s also a serious issue in the workplace. 

It is estimated that 35% of the United States workforce (or approximately 53.5 million people) have experienced workplace bullying.  Workplace bullying is commonly defined as “repeated mistreatment by one or more employees that takes the form of verbal abuse, threats, intimidation, humiliation or sabotage of work performance,” according to the Workplace Bullying Institute. 

But, surprisingly, workplace bullying is not a legally cognizable claim in most states.  Approximately 30 states have introduced some legislation to address workplace bullying, but laws have not been enacted to protect employees from bullying.  The term “hostile work environment” is also commonly used to characterize workplace bullying. But, phrases such as “hostile workplace” and “hostile work environment” used to describe workplace bullying generally fail to meet the legal definition required to be actionable under the law. Yelling, screaming, intimidation, and verbal abuse, and other actions which increase the tensions among employees and strain relationships between employees and employers is legally acceptable conduct. The law does not shield workers from the lack of civility that exists within many places of employment.   

In order to be protected under the law, an employee must experience a hostile work environment or bullying that is directed at that person’s membership in a protected class or trait, such as race or sex/gender.  Title VII is the anti-discrimination legislation that prohibits harassment and discrimination on the basis of a person’s race, color, national origin, sex, or religion. Generally, when setting forth a hostile work environment claim based on race or sex, the person who has been harassed or discriminated against under Title VII while employed, must show that 1) the person was subjected to [slurs, insults, jokes or other verbal comments or physical contact or intimidation of a racial nature]  or [sexual advances, requests for sexual conduct, or other verbal or physical conduct of a sexual nature]  2) the conduct was unwelcome; 3) the conduct was sufficiently severe or pervasive to alter the conditions of the person’s employment to create a [racially] or [sexually] abusive or hostile work environment; 4) the person perceived the working environment to be abusive or hostile; and 5) a reasonable person in that person’s circumstances would consider the working environment to be abusive or hostile.

Whether the environment constituted a hostile work environment is determined by looking at the totality of the circumstances.  This includes the frequency of the harassing conduct, the severity of the conduct, whether the conduct was physically threatening, and whether it unreasonably interfered with an employee’s work performance.  In addressing employment discrimination, the United States Supreme Court has stated that “Title VII is not a civility code.”  There are other laws besides Title VII which protect workers.  Some state laws expand the protections offered under Title VII to include other “protected traits” such as age, marital status, pregnancy, disability, and sexual orientation, among others.  A hostile work environment can include discrimination against more than just a person’s race or sex.

For conduct and speech to reach the level of being hostile, it must go beyond isolated incidents, rudeness, and casual joking.  Even the use of a few racial epithets is usually not enough to create an unlawful hostile work environment. To be considered hostile, the conduct directed at a person’s protected traits must be intentional, severe, recurring and/or pervasive and interfere with the employee’s ability to perform his/her job.  The conduct must “cross the line.”  As a general rule, it is not illegal for an employer to harshly criticize its employees, or to use profanity. But, if the criticism or conduct is directed at an employee's sex, race, disability or other protected characteristic, it is illegal. 

The issues and potential liability related to claims of “hostile work environments” should not be ignored. It is imperative for employers and employees to understand what actions create a hostile work environment under the law. Employers should implement clear policies against harassment and discrimination.  Once these policies are established, they must be followed and enforced.  

There is no precise test for determining when the amount of harassment is "enough."