Employee Survival Guide® - What Is a Hostile Work Environment Anyway?

Episode Date: March 22, 2023

In this episode of the Employee Survival Guide, Mark confronts and explains one of the most overused and most misunderstood employment law phrases out there.  What is a hostile work environment anyway?  Mark wants to end the confusion once and for all. After you listen to this episode you will know what is and what is not a hostile work environment.   Links mentioned in the show:https://www.shrm.org/resourcesandtools/tools-and-samples/hr-glossary/pages/hostile-work-environment.aspxhttps://www.eeoc.gov/harassmentThe content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to. If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. Hey, it's Mark again and I wanted to talk to you about a topic that I hear a lot. And what is hostile work environment? What is it? People talk about it and use that phrase so often. I mean, at least several times a week, people will call me trying to find out if they have a case or not.

And they just rattle off this phrase of hostile work environment, that they've been experiencing it. And I had to basically do an episode about this because it's so overused, but so misunderstood

in terms of the common parlance of just everyday folks who are working. I wanted to set the record straight of what it is and what it's not. Why is this a problem? And I'm going to just, you know, say that I blame employers. Because your employer is not going to explain to you what it is and what it's not. Almost as if they're just kind of impugned from like any like responsibility to help explain it to you. I know it's going to appear in some definition in some manual you – employer gave you.

I know it's probably going to be talked about in some sexual harassment training that you attended years ago but had literally no effect. I mean literally the EOC admits that EOC training at – or sexual harassment training does not work. But it is so overused and it applies not only in the sexual harassment context, but it applies in every discrimination context because it's used – I use it as a claim against employers all the time. But it has to fit within a certain rubric of requirements that the law says it is what it is. So that's the purpose of the podcast episode is to explain so that you can refer to this episode and saying, OK, now I get it. Now I know what hostile work environment is. I know what it's not. So it should be very clear about what it is and what I'm done with the episode.

But let's just dive into it. The Society for Human Resource Management, SHRM, and so you know who they are. They're an association that advises and employers. They're an employer organization. Well, where's your employee organization? Well, there really is not one. There's the National Employment Lawyers Association, but that's for me. But it has some information out there. We are actually producing a website that's going to be called EmployeeSurvival.com. And that will be out shortly where you can actually go to that source and get information, much like our website. So here's what Society for Human Resource Management defines humiliating work environment

or causes a situation where a person's psychological well-being is adversely affected, end quote. Let me unpack that for you and then I can get deeper into this as we move along. Harassing or discriminatory conduct. Well, I'll just define harassing conduct in a a second but how the EEOC defines it. Discriminatory conduct, it's essentially people holding a bias towards you. But they now qualify as – and the definition I just read to you is what really – how courts interpret it. If you had to – if I'm talking to a federal judge and explaining that the person is subject to a hostile work environment and debating the topic, I know and the judge knows I need to basically ramp up facts that show that the person is subject to a severe situation. I mean we're talking severe and now I'll explain that in a second.

And pervasive, meaning it's ongoing and it's happening quite often and employers can't control it. And then the SHRM definition also says interferes with the abilities to do their job. Now, that's a matter of subjective point of view. It's interfering with your job. Think about that for a second. Interfering with your ability to do your job, it's making it uncomfortable and whatnot. And let's be very clear. When is this really happening to you? It's happening when you're about to be fired. There's two types of cases. It's hostile environment because they're trying to set you up for fire and make you quit,

or the shit's really happening to you and the employer is unaware of it and there's a really rogue agent here. He's engaging or she's engaging. It can be either or and it's either one or the other, OK? So it's happening in the context more often than not in the setup for termination. And so interfering with your ability to do the job, it's not really stopping you from doing the job. It's just making it really uncomfortable. I mean just you're reaching a point where I had a call the other day, actually yesterday, the individual wants to hire us, but she's really nice lady, but she's having a problem just coping. It's like producing anxiety. And this is quite common. I had another

gentleman I'm dealing with now in his 60s, 59, I think. and he's also subject to – he's having anxiety and not diagnosed yet but having anxiety and panic related to what he's experiencing. So the severe pervasive – so severe, it's serious and ongoing pervasive happening all the time and it's creating an intimidating, offensive and threatening humility in work environment. I mean one or all of those things can happen. So intimidating, we all know what that is. It's the bully at work, whatever, and it's the people abusing their positions of power and just trying to control us. Offensive is offensive. If it's someone calling someone a derogatory statement or a sexual comment or – I actually have a case right now. The C word is used in the workplace involving my client. Obviously, the employer denies everything of course. But

that's pretty offensive to use a C word to describe a woman in a workplace. describe a woman in a workplace. Threatening, I had the same individual who used the C word threatened to do harm to a family member of my client. I mean, that's unusual, happens. I have had one client who was punched by a CEO years ago in an office, in a meeting, in front of other people. I mean that's bizarre. The CEO was actually the majority shareholder of a major financial firm. He lost his control and the Delaware Chancery Court took it away and then allowed the minority shareholder group to take over control of the company.

Pretty serious event. So he got slugged in an office meeting. So that's a threatening environment. take over control of the company. Pretty serious event. So he got slugged in an office meeting. So that's a threatening environment. And now – and I spoke about the psychological well-being aspect. And that's whereby basically you're subjected to this behavior happening all the time, pervasive and severe. And you're basically losing your shit because you have an anxiety and you don't have like organic anxiety and depression. You just have situational. So if you went to a diagnostic statistical manual, revised number five, which is a real

document. It's a book that psychologists and psychiatrists use to diagnose people's mental nervous conditions. You would find language and symptoms that someone would experience that is situational. So you're having a situation caused by some Yahoo in work that is trying to get you to quit, maybe putting you on a pip, all this kind of stupid stuff that happens. That's really just kind of a fiction.

It's just trying to make it up. You know you're doing your job just fine. It's just they have other concerns. I'm only just describing what employers do to you. It doesn't make it right. It's just that the current state of affairs to fire you is to make you quit first and then set you up for firing later on and then create this hostile environment. So in that SHRM definition, I've now described and you got a good sense of what hostile work environment is. And let me get a little further into this. The EEOC has a definition of harassment. I'm going to actually read it to you so you understand this.

Quote, harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, a very important statute. The Age Discrimination and Employment Act of 1967, another important statute. And the Americans with Disabilities Act of 1990. I'll also caveat and say that harassment and form of discrimination applies under 42 U.S.C. 1981, which is a civil rights statute that we use to enforce and prosecute race discrimination cases for everybody, not just African-Americans. It's white reverse discrimination. It's Asian. It's black.

The EOC goes on to say harassment is unwelcome conduct that is based on a race, color, religion, sex, including sexual orientation, which is now the law of the land, folks, gender identity and pregnancy, national identity, and pregnancy. National origin, older age, and I'm reading now, so beginning age 40, so that's how the law applies. Disability or genetic information, including family medical history. Harassment becomes unlawful where, number one, enduring the offensive conduct becomes a condition of continued employment. Or, two to the conduct that's severe or pervasive, so it's one or the other, enough to create a work environment

that a reasonable person would consider intimidating, hostile, or abusive to any of those. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing discrimination charges, testifying or participating in any way in an investigation, proceeding or lawsuit under these laws, or opposing implement practices that they reasonably believe discriminate against individuals in violation of these laws, end quote. So that's from the EEOC's definition of harassment on their website, EEOC.gov. If you're not familiar with it, get familiar because it's free.

Then the EOC goes on to say the following topics, types of conduct do not constitute hostile work environment. So I told you I was going to go into what is, what is not. And I'll end with what is and what examples I have for the offer you because there are many. If you do this for enough years, you see a lot of garbage from employers and you get really tainted and slighted and you're like there's no good code of conduct or good company out there. They're all bad. I'm sorry. I'm jaded. Isolated incidences, unless extremely serious, will not rise to the level of illegality. This means it's being unlawful.

To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to a reasonable person. What the hell does that mean? To a reasonable person means you. Just put 10 people in a room and say, do you find that to be unreasonable? And you take the poll and people say 5 out of 10, six out of 10, seven out of 10, find it unreasonable. So the petty slights and annoyances, this is where the misunderstood part of the people's understanding of what a hostile work environment means. I hear just about every story of just someone just disrespecting them at work, talking to them in a downward manner, being insulting, sarcastic, critical,

yelling at them, just being a bully, being difficult, whatever. And, you know, just – and it happens all the time. And there – Let's take a quick break. It's Mark Kim. We have a new product for you. It's called the Employee Survival Guide or EmployeeSurvival.com. And it's a site that you can obtain PDF products that I created myself.

I was spending too many hours, way too many, researching and writing about, for example, the performance improvement plan or beating them. And the second one about negotiating severance negotiation agreements, two of the most important topics that we see in terms of the web traffic and podcast traffic we have. So check out EmployeeSurvival.com and see if this can try to help you and you don't need an attorney to use it. Thank you. Like every day, every week, and just doesn't stop. And typically happens when people are getting ready to be fired by employers. I want you to put the writing on the wall, make your work environment suck, essentially what it means. It's cheaper for you to quit, by the way, because you can't claim unemployment benefits. So that's why they do it.

If they have to fire you, I mean they can fire you. It's at will. They don't give you a reason at all. They just fire you. It's happening regularly now. It's March 2023. So it's happening quite often. The recession then hasn't become yet is what I

define it as. Anyway, the petty slights and annoyances, I hear the story of just this junk that's thrown at people, nice folks too. Everybody's just, you know, just didn't see it coming. And all of a sudden the train wreck happens and they're like, they call me like, what can I do about it? I have to explain this same conversation to them that it has to be over – rise to above a level of just the petty slights and annoyances and the bully behavior. When you get on a call with me, I'm looking for how you're treated differently because of some type of protected status like your age, race, religion, disability, retaliation because you complain about something. I'm just looking to hook that bad behavior you're experiencing by your supervisor or your coworker and your protected status.

If it's not there and the petty annoyances, slights, and isolated incidences are just – they're bad but they're not severe. They're not – you're not using the N-word. You're not describing pregnant women as having baby brain. You're just not jumping over – you're not referring – using the C-word to describe women. You're not using sexual orientation like the – sorry, that you're – something about being gay or sexual orientation. And I kind of – I don't want to spread and use the derogatory language because I don't really think it's appropriate. But it has a – go over a threshold.

And so you're going to – my point being is that you're going to experience a crud load of material behavior by your employer that's just not really humane to you but doesn't get to legal status. And so I think there's some level of training given to employers, managers, and you're always going to screw it up. The manager is just going to take the direction and then screw it up. Because I hear – for example, I hear example, in the age cases, I always ask the person, did they ask you about your retirement plans? Like, you know, what are you going to retire soon? How old are you? Did you know that both of those comments are illegal? You can't ask people that. And if you ask it right before they're fired or before a PIP, well, guess what? Come to me. That's a nice case because they're taking your age into consideration to evaluate

your job. So that may be a hostile environment, but they're using – exhibiting bias towards you on the age example there. So there's a certain threshold to get over. Now, what is considered illegal conduct by the EOC? Let's – because I've been talking around that bush all day. EEOC because I've been talking around that bush all day. So here the EEOC says, here's what is illegal. Quote, offensive conduct may include but is not limited to offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures. That's the old pin-up calendar girls that you used to put up in the office in the locker room. And interference with work performance.

Harassment can occur in a variety of circumstances, including but not limited to the following circumstances. A quote, the harasser can be the victim supervisor, a supervisor in another area, an agent of the employer, which can be an independent contractor, by the way, a coworker or a non-employee. Again, independent contractor. The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct. That's really where you're basically infusing the workspace with your shit,

your sexual connotations, your C word, your whatever. And other people in that environment are affected by it because they're like, what is this? Why are you – and they're being subjected to that other than the victim herself or himself. EOC goes on. One last example is unlawful harassment can occur without economic injury or to discharge – or discharge of the victim. So you don't have to be fired to experience hostile environment. And so those are what the EOC describes it. So I have just example upon example, and I thought about what are the best ones I can give to you.

I have had cases where the N-word is used about clients. Clearly – and I've read cases too where the N-word is used, but the court said it was not unlawful or hostile. Isn't that weird that you can use the N-word at work? And we're talking in a really derogatory way. We're not talking because you heard a rap song played in the office. We're talking about someone using the N-word one time. And the court says, you know, not enough. And you got to know, folks, that just because the law is illegal on this concept of describing, Folks, just because the law is illegal on this concept of describing if the derogatory N-word is used in a work environment, judges have different points of view politically. They're appointed by who?

Politicians. So presidents. So in the federal court. And so they don't expect that every case is going to fall down exactly the same. So it doesn't happen. Other examples of hostile work environment, I always refer to the CEO punching my client because it was just – well, it was serious but it was also very funny. And serious because CEOs shouldn't be doing that in front of people in a workspace because they can't control their anger management of whatever is happening to them. My client did get assaulted. He did resolve the matter and he was well compensated, of course.

The other examples are – my favorite is just pregnancy-related comments that men and women – women don't – they do it too – to other women. Women don't – they do it too, to other women. And it's weird, I know. But just anything about having pregnancy or just the baby brain comment, just that they're – something about anything pregnancy-related, men have just made derogatory sexist remarks because it does fall into the vein of – in category of sex discrimination. And we all know the result of bias towards pregnancy, which can exist in the hostile environment situation because the woman has to take time off for maternity leave and employers don't like it. And I cannot understand why those cases still exist. But they just ramp the crap up on pregnant employees all the time. And they're my favorite case because they're so easily to deal with on my part. And I always can resolve them.

But just employers make stupid mistakes. It's just when you have someone who's pregnant, do the opposite. Show them how much you care about. They're going to have a beautiful life event with their spouse or their partner and have a new baby and bring it to the world because everybody came to the world the same way. But just don't make their life hard, okay? It's just asinine that it happens. And I'm not kidding you. It happens every – once a month, I get a call for pregnancy case or hear about a case or have a case.

So they exist. They're real. Sex cases, you can have the standard stupid junk of derogatory language about male and female about just sexual connotations and just, sex is a very powerful thing. We actually protect in our society sex more than anything else, race, age, whatever. We've passed the laws to the Speak Up Act. So to eliminate the pre-dispute nondisclosure issues, think about the ending – well, Biden signed the forced ban on arbitration for sex harassment, sexual assault cases. I mean even in the southern district and northern – the district of Connecticut, the federal courts, when you have an emotional distress case, it only has to be connected to a sex discrimination or sex gender case or sexual harassment case.

discrimination or gender case or sexual harassment case, all other cases of claims of emotional stress in an employment setting are they don't rise to the level. We treat sex differently. I don't know why that is, but our culture is – it's finally – maybe it will get to a level where we treat all of the protected classes the same way, but sex, it's a major deal. So in this hostile work environment context, you have, you know, think of your, use your imagination. You have a lot of men and women using pejorative language to describe one another person in an attempt to intimidate them. I don't necessarily

hear or see the cases where it's kind of like, you know, quid pro quo where you, you know, if you have sex with me, I'll promote you, that type of thing. I don't think that's happening as much. I think it's more of just this subversive, disgusting like language that's being used or just treating people differently and men get more favorable treatment. There's a story that I'm going to actually do an episode on and actually multiple episodes where it's like the worst sexual harassment story I ever heard. I mean it's on our podcast in our website and you can read a bit. And I've included the copy of the complaint. One example just to kind of get a taste of this.

The manager rode in a car and he did this quite often with his employees, had the females come in the car with him and he would – I don't mean to get a little disgusting but he would basically pull his phone out, turn on some type of porn website and make his subordinate worker watch him as he masturbated in the car. I'm not kidding. It's really gross but this fellow did it. And he actually has a podcast where he's challenging the victim of this today. It's still going on. So if you dump into that story, it's an ongoing affair right now. It's in the court in the Eastern District of Pennsylvania Federal Court. So it's, you know, this stuff really happens. There's really people who don't treat females equally. And it gets really bizarre.

So that's a hostile work environment example I just described to you. So can you now see that there's a distinction between just petty slights and bullshit and disrespect that people receive? And it has to get to a level of just severity. And I'm going to just close by saying that you're going to endure a lot of crap before it becomes illegal. All right? And you've got to now the gist of it. Okay. When you say, you call me on the phone and saying it's a hostile work environment, I've been subjected to, be prepared to tell me the severity elements first. Give me the high points. Give me the top

three things that happened to you. And I'm like, did that happen over a period of, you know, ongoing period of time? And you say, yes. I'm like, that's going to be a hostile environment. And it's going to be a claim by itself that exists in a complaint in addition to sex or whatever the underlying protected class is of discrimination and bias. So now you know there is a distinction. And it has to go up a hill. And you're going to go up and push up that hill and endure that crap from that manager or that coworker for a long period of time until it reaches a precipice and somebody made a mistake, lack of judgment, whatever it was, and just began to just change that working environment in such a way that you're freaking

out. And that's what hostile working environment is. And it's – I didn't try to use any type of legal jargon other than what I quoted because I wanted to make sure that we just talk and just regular speak and just like understand it. Because a lot of this employment law concepts are overinflated, overdefined, and it's designed to basically keep it away from your understanding and that's my sole mission is to basically make it understandable for you to digest it i think this concept today is a hostile work environment you get it now okay and so food for thought if you're seeing it going through it um you know what it looks like now and the examples are endless. I can go on and on and on, but you now get a gist of what it is and it's not. Hope you found this informative. And as always, thank you for listening. Talk to you soon.

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