Q: What constitutes a “hostile work environment” and what’s my obligation if an employee complains about it?
A: A hostile work environment occurs in a couple of ways:
- When unlawful harassment in the workplace becomes a condition of continued employment (meaning the employee must continue to endure it in order to keep their job).
- When unlawful harassment in the workplace becomes severe or pervasive enough that a reasonable person would consider the work environment intimidating, hostile, or abusive.
For workplace harassment to be unlawful, it must be unwelcome and based on a protected class such as race, gender, age, religion, national origin, disability or any other protected class. Sexual orientation and gender identity are also protected classes in most states and under current federal interpretations.
For example, frequent, negative comments from a supervisor to a direct report would not itself create a hostile work environment because it's not necessarily based on a protected class. However, negative comments directed only towards female staff or one particular ethnic group might.
Federal law not only prohibits discrimination based on these protected groups, but also obligates employers to prevent or stop harassment of employees when that harassment is based on these protected characteristics, whether it’s coming from supervisors, peers, or even customers. The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed. We recommend that you have a strong anti-harassment policy in place and carefully investigate all complaints and allegations, documenting as you go. Don’t ignore the issue or treat it lightly.
Disciplinary action for unlawful harassment can vary. A simple misunderstanding or single act of poor judgment may be best handled with a write-up, but serious policy violations or ongoing harassment may require termination. We generally recommend corrective action that will cause the behavior to stop and show that you take it seriously.
Promptly responding to complaints of harassment can help prevent claims of a hostile work environment in the future. In turn, this can help avoid potential agency investigations and employment lawsuits.