Hostile Work Environments Are Bad Business
If you’re a general practitioner who inevitably happens upon family picnics or neighborhood barbeques, sooner rather than later someone will seek your blessing on their work-related legal analysis. The one-sided conversation might go something like this: “What’s going on there just ain’t right. They’re definitely breaking the law because that’s a hostile work environment—isn‘t that right my lawyer friend? Go ahead, tell them. It’s illegal.” Now, before survival mode kicks in and compels you to search for strong drink, use these little tidbits to remind folks that you are the one with the law license.
First, hostile work environments do exist. Under a handful of federal statutes and some state laws, it is absolutely illegal to maintain a hostile work environment. It is also a potentially expensive violation, so an employer cannot afford to just let the grownups work it out among themselves.
The very term hostile work environment is under constant evaluation. New fact situations keep appearing. The most common still may be sexual harassment claims, where offensive conduct or remarks create a hostile environment. These claims can be pervasive sexually suggestive comments to or about coworkers, or discrimination in work hours, pay, benefits, or privileges based on sex. It most often impacts women, but not always. For most of us, it is now easy to see when the acts are unlawful, like uninvited physical contact or even a more subtle combination of such behavior and other remarks.
Hostile work environment claims are expanding, however, into every area of discrimination law. That means that openly discriminatory acts or remarks regarding race, ethnicity, age, or disability might be evidence of a hostile work environment. More and more, similar issues are raised about sexual orientation. All of these areas are developing and should not be ignored in an employer’s anti-discrimination or EEO policies. While a mere objectionable “stray remark” might not amount to harassment or discrimination, internal complaints about such remarks should not be ignored, as they could be the seeds for a hostile environment.
Likewise, in whistle-blower cases, an employee who made or just helped to report a problem to management or an appropriate agency will sometimes be greeted with retaliation. When an angered employer responds by making the employee’s work life miserable—cutting hours, demoting the individual, stripping duties, increasing workloads, and almost anything else within the imaginative manager’s power—the employer is creating a hostile work environment in the form of a retaliation claim.
The law does give employers a chance to avoid liability. If an employer has a real, well-publicized process within the company to address such complaints, it can avoid liability for some rogue wrongdoers. The policy must create a clear process to report and act upon complaints. If the employer has created a real process and the harassed employee unreasonably refuses to use it, the employer can escape liability, though the harasser does not. But remember, the policy must be real. If a company has no process or a sham process, liability can be severe.
What’s a lawyer to do? Just tell your business clients and your good neighbors at the cookout this reality. Allowing a hostile work environment is bad business. Any employee who spends work hours worrying about the next time he or she will be harassed by a coworker or manager is not really focused on the job. So harassment costs employers money long before a claim ever finds a courtroom.
Neil A. Grover is a solo in Harrisburg, Pennsylvania. His has practiced civil litigation for 20 years, representing individuals, families, small businesses, and unions. Contact him at firstname.lastname@example.org.
© Copyright 2009, American Bar Association.