It's illegal to harass employees at work because of a trait that's protected by employment discrimination laws, such as race, gender, color, religion, national origin, age or disability status. When that harassment is so severe that a reasonable person would consider the environment hostile and abusive, it might qualify as a hostile work environment. However, there is no checklist you can use to make a determination. The U.S. Equal Employment Opportunity Commission investigates each claim and makes a decision based on the specific facts and circumstances of each complaint.
Workplace Discrimination Laws
- Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, gender and national origin.
- The Age Discrimination in Employment Act of 1967 prohibits discrimination against workers age 40 and older.
- Titles I and V of the Americans With Disabilities Act of 1990 prohibit discrimination against workers with disabilities.
These laws also prohibit discrimination against an employee who files a discrimination complaint, participates in a discrimination investigation or opposes discriminatory practices. Many states have enacted laws that extend discrimination protection to other characteristics, such as sexual orientation.
Harassment is a kind of discrimination that's caused by individual behavior. It can take many forms, including sexually explicit language; insults, slurs and name calling; jokes, mockery and ridicule; lewd gestures, threats and intimidation; and offensive pictures, cartoons, objects or materials. However, not all harassment is illegal. The law only prohibits harassment that's directed at an employee for a reason that the law protects, such as the victim's race, age or gender. For example, workplace bullying because a supervisor doesn't like you might be perfectly legal, regardless of the kind of environment it creates.
Hostile Work Environment
While a single off-color joke or isolated comment might cause an awkward or uncomfortable moment, it usually isn't enough to establish a hostile work environment on its own. To qualify as a hostile environment, harassment must be pervasive, constant or so severe that a reasonable person would consider the work environment intimidating or abusive. Harassment might be caused by a supervisor, a co-worker or even a customer, and the person who makes a hostile work environment claim can be anyone affected by the harassing behaviors, even if she is not the target of the discrimination. To make a hostile work environment claim, an employee doesn't have to experience economic injury.
Employers are generally liable for the actions that supervisors take toward employees. If a supervisor creates a hostile work environment, the company must show that it took reasonable efforts to correct the situation and that the affected employee failed to take advantage of the company's efforts to disclaim liability. Companies are liable for a hostile work environment created by other employees and nonemployees it controls, such as independent contractors, if they knew about or should have known about the harassment and failed to act to prevent or correct it.
There is no list of criteria you can use to determine whether an environment is hostile. When an employee makes a hostile work environment claim, the U.S. Equal Employment Opportunity Commission investigates the claim and determines the outcome based on the facts and circumstances specific to the complaint. Some cases in which the EEOC found evidence of a hostile work environment include companies that:
- Broadcast daily prayers over the public address system.
- Referred to Japanese competitors using slurs and images of samurai warriors and sumo wrestlers.
- Distributed offensive jokes of the day and praised the employee responsible for circulating them.
- Continually tormented a female employee in a male-dominated profession and repeatedly showed her photos of naked women.
Steve McDonnell's experience running businesses and launching companies complements his technical expertise in information, technology and human resources. He earned a degree in computer science from Dartmouth College, served on the WorldatWork editorial board, blogged for the Spotfire Business Intelligence blog and has published books and book chapters for International Human Resource Information Management and Westlaw.