Thursday, June 12, 2014

Hostile Work Environment?

Or is it just a jerk being a jerk?

It sometimes happens (and not infrequently), that employees come to their HR rep and complain of being harassed and experiencing a hostile work environment. This will usually set off that internal alarm that gets us on our feet (mentally, if not physically) and ready for action. As we begin our questioning we quickly find out that what has really happened is that the employee experienced what she viewed as rude behavior or being "picked on". Or better yet, that she feels her supervisor’s demands that she do her job constitutes harassment. As much as the word "harassment" is thrown about, people don’t always realize that the word, along with "hostile work environment" has a very specific legal meaning in the workplace. And being picked on, or told to do your job (however rudely) isn’t it.

It doesn’t include all circumstances that the word "hostile" would generally suggest. Basically, there is no law against being a jerk.

Anti-discrimination and harassment laws protect employees from being treated negatively in hiring/firing/layoff decisions, pay practices, promotional and job assignment decisions, training opportunities, etc.) because of their actual or perceived inclusion in a protected class or status (e.g., race, gender, age, ethnicity, marital status, religious affiliation, veteran status, disability, and in some locations because of their parental status, political affiliation, or sexual orientation or gender identity). Legally, a hostile work environment can only arise in the context of illegal discrimination.

However, a hostile work environment may exist when unwelcome conduct is based on those characteristics protected by law, and the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. The law looks at these factors in determining whether a hostile work environment exists:

  • 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.

While it’s certainly unpleasant, it’s not illegal because your coworkers are just mean and petty, for example. Just because a workplace is intimidating, stressful or unpleasant doesn’t make it hostile, at least not from a legal perspective. Occasional teasing and off-color comments do not qualify as harassment, nor usually does a single incident.

Displaying of sexually explicit photographs, or other demeaning pictures, or obscene jokes, slurs and insults (even via email or other electronic means) or unwelcome touching can be deemed illegal conduct.

Despite efforts to legislate against bullying in the workplace, as of yet, there are no laws to regulate civility in the workplace. It is important not to confuse illegal conduct with being a jerk.

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