Bringing and Defending Hostile Work Environment Claims
One of the most asked questions of us is whether an employee has been subjected to a hostile work environment. The vast majority of the time, no legally actionable hostile work environment ever existed. The common misperception with these cases is that a hostile work environment exists when a boss or supervisor is rude and offensive on a regular basis.
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While rude or offensive comments can help create a legally actionable hostile work environment, there must also be some discriminatory reason behind the boss or supervisor’s conduct. In other words, if the boss is rude to an employee because the employee is a Catholic or gay or married or disabled or African-American or over 40, etc., then a hostile work environment may exist. But if the boss is rude to an employee just because he can be, then it is probably not actionable.
Below are what an employee needs to prove to have an actionable claim for a hostile work environment.
Elements of a Hostile Work Environment Claim
To establish the prima facie hostile work environment claim, a plaintiff must have proof that (1) he was subjected to verbal or physical conduct because of his inclusion in a protected class of individuals, (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment.
In addition, the employee must show that the work environment was objectionably and subjectively offensive.
The objective component is whether reasonable person belonging to the protected class would find hostile or abusive, and one that he in fact did perceive to be so. The court will look at the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment. See Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir. 1988) (finding no hostile work environment where “off-color” jokes were told in workplace).
- One court has held that an Asian-American plaintiff was not subjected to actionable discrimination by her co-workers, even though she heard co-workers use, in her presence, the phrase “China man” and make references to China and communism.Her co-workers even poked fun at the way she mispronounced the word “Lima” and later pulled their eyes back with their fingers in an attempt to imitate or mock the appearance of Asians.The court held that this conduct constituted simple teasing and offhand comments and was therefore neither severe nor pervasive enough to alter the conditions of the plaintiff’s employment.
- Other cases have held that such comments and actions constituted non-actionable racial discrimination.For example, another court found no hostile-environment discrimination where an employee was told that he had “a typical Hispanic macho attitude,” that he should work in the field because “Hispanics do good in the field,” and where he was yelled at in front of others.In another decision, a court found no hostile work environment where the supervisor referred to females as “castrating bitches,” “Madonnas,” or “Regina” in front of the female plaintiff on several occasions and directly called her “Medea.”These cases of non-actionable discrimination focused on the fact that the discriminatory remarks were merely simple teasing and offhand comments.
As for the subjective component, the employee must show that he believed the work environment to be hostile.
- If the employee played along with his co-workers as all of them were making insensitive jokes, he likely did not find the work environment to be hostile.