Hostile Work Environment: Playing Defense to Offensive Workplace Conduct

A version of this article was originally published in the July 2015 issue of The HR Specialist. It is reprinted here with permission.

A hostile environment can result from the unwelcome conduct of supervisors, co-workers, customers, contractors or anyone else with whom the victim interacts on the job when the unwelcome conduct renders the workplace atmosphere intimidating, hostile or offensive. The U.S. Department of Labor provides the following examples of behaviors that may contribute to an unlawful hostile environment: discussing sexual activities; telling off-color jokes concerning race, sex, disability or other protected bases; unnecessary touching; commenting on physical attributes; displaying sexually suggestive or racially insensitive pictures; using demeaning or inappropriate terms or epithets; using indecent gestures; using crude language; sabotaging the victim’s work; or engaging in hostile physical conduct.

To demonstrate a hostile work environment, a plaintiff must show that (1) he or she suffered intentional discrimination because of his or her protected category; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff;(4) the discrimination would detrimentally affect a reasonable person of the same protected class in that position; and (5) respondeat superior liability exists. Greer v. Mondelez Global, Inc., 590 F. App’x 170, 173 (3d Cir. 2014) (citing Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990)).

The U.S. Court of Appeals for the Third Circuit recently summarized the law on hostile work environments under Title VII in Greer v. Mondelez Global, Inc., which emphasized the difficult legal requirements that must be met under Title VII before a plaintiff can establish a workplace harassment claim. The employee plaintiff in Greer claimed that a series of comments that happened over a five-month period gave rise to a racially hostile work environment. Some examples of the comments made to the African-American plaintiff by a pair of co-workers were: that she probably voted for Obama; that a hip-hop magazine found in the office belonged to her; that she probably lived in a rough area; and that she probably listened to rap and R&B music. The plaintiff complained about the racially based comments to management, and her employer met with the offending co-workers and ordered them to stop making the comments. Subsequently, the plaintiff resigned and brought suit, claiming racial retaliation and a racially hostile work environment under Title VII. The district court rejected the plaintiff’s claims and granted the employer’s motion for summary judgment. On appeal, the Third Circuit affirmed the lower court’s holding that the plaintiff’s claims of a hostile work environment did not satisfy the threshold legal requirements.

The Third Circuit noted that “the threshold for pervasiveness and regularity of discriminatory conduct is high,” and it further explained that “a hostile work environment is actionable under Title VII only if it is so severe and pervasive that it alters the conditions of the victim’s environment and creates an abusive working environment.” The environment must be more than “hostile in the plaintiff’s view”; it must be “objectively hostile.” As previously stated in Weston v. Pennsylvania, 251 F.3d 420, 427–28 (3d Cir. 2001), “offensive comments, jokes and jibes” are insufficient to state a Title VII claim “absent a change in a ‘term, condition or privilege’ in [the employee’s] employment.” Here, the Third Circuit noted that, although the comments made to the plaintiff were unprofessional, they did not rise to the level of a hostile work environment.

Even though it is difficult for employees to meet the high legal burden necessary to establish a hostile work environment claim, employers should take preventive measures to protect themselves from potential claims by employees and to foster a respectful and professional work environment. An employee who feels he or she is subject to hostility at work can be a financial drain on an employer, even if the employee does not meet the legal threshold for a “hostile work environment.” The Wall Street Journal reported that, in 2007, networking-equipment company Cisco Systems estimated that it was losing $8.3 million a year due to incivility that caused decreases in productivity.1 And, when an employer takes proactive steps to prevent harassment, it makes it difficult for a plaintiff to meet the fifth element of a hostile work environment claim — respondeat superior liability. For respondeat superior liability to exist, “a plaintiff must demonstrate that the employer failed to provide a reasonable avenue for complaint, or, if the employer was aware of the alleged harassment, that it failed to take appropriate action.” Greer, 590 F. App’x at 174. As the Third Circuit noted in Greer, the plaintiff could not establish respondeat superior liability because the employer timely responded to the plaintiff’s hostile work environment complaint by addressing the plaintiff’s concerns and the employer’s response was “reasonably calculated to prevent further harassment.”

To mitigate the risk of hostile work environment claims, employers should implement policies that prohibit behaviors that could create a hostile work environment; establish, follow and enforce protocols and procedures for reporting and investigating complaints; and promptly and thoroughly respond to and resolve any complaints of a hostile work environment. Employers also should train management on their policies and how to respond to employee complaints and should make employees aware of the procedures for reporting such incidents.

Endnote

1 Rachel Feintzeig, “How to Disarm a Nasty Co-Worker: Use a Smile,” The Wall Street Journal (Aug. 27, 2013), available athttp://www.wsj.com/articles/SB10001424127887324906304579038922066369060.