For harassment in the workplace to be legally actionable, it must constitute a hostile work environment. Not all harassment creates a hostile work environment. A work environment becomes hostile when the inappropriate conduct of your supervisor or co-worker is “so severe or pervasive” that it changes or alters the conditions of the work environment to make it abusive. Additionally, for a hostile work environment to be actionable, the unwanted or harassing conduct must be based on a protected class such as race or national origin, disability, age, sex, or sexual orientation, identity or expression. You may also have a hostile work environment claim if the offensive conduct was in retaliation for a discrimination complaint you made, for your pursuit of workers compensation or family leave benefits, or if you engaged in protected whistleblower activity.
So what conduct is so severe or pervasive such that it rises to the level of a hostile work environment? There is no specific number of incidents that would establish a hostile work environment. While a petty slight, annoyance, or isolated incident (unless extremely serious) likely would not be considered illegal, you may have an actionable claim if these comments are made on a regular basis. A single incident alone would have to be very harsh or extreme to constitute a hostile work environment. For example, our courts have found that racial epithets are especially egregious because they can cause irreparable damage in the mind of the victim and the entire workplace.
Common examples of conduct that could support a hostile work environment are the following:
- Offensive, sexual, racist or inappropriate joking,
- Any unwelcome touching or hugging,
- Demeaning or threatening behavior,
- Displaying racist or sexually inappropriate pictures,
- Discussing sex acts or using sexually suggestive language,
- Staring, leering, or looking at someone suggestively,
- Using slurs or insensitive terms, and
- Making unwanted comments on physical qualities.
If an employer fails to take effective measures to stop illegal harassment that it knows of or should know of, the employer will be responsible, along with the offending employee, for the hostile work environment. Such preventative measures require the employer to issue anti-harassment and anti-discrimination policies to its employees setting forth that such behavior will not be tolerated. These policies should also provide for a complaint procedure should an employee believe there was harassment in the workplace. The employer should promptly investigate any claims of discrimination or harassment and take appropriate remedial or disciplinary action to ensure that the inappropriate conduct does not happen again. The failure of an employer to take these steps can make it liable for the hostile work environment.
In the event you are successful on a claim for hostile work environment, you may be entitled to injunctive relief and damages which include compensatory damages for financial losses, emotional distress damages, and punitive damages (if the conduct is egregious), as well as attorneys’ fees and costs.
If you believe or are unsure if you have been subjected to a hostile work environment, do not hesitate to contact our office for a consultation regarding your legal rights.
Jason T. Mushnick is an employment attorney at Triarsi, Betancourt, Wukovits, & Dugan, LLC with experience handling hostile work environment and other employment related claims. Feel free to contact him directly to see if you have a claim or if you have any employment law questions at (732)-618-5942 or by email at jm@tbwdlaw.com.
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