• What is a “Hostile Environment”... Exactly?
  • October 18, 2013 | Author: Krista M. Cabrera
  • Law Firm: Foley & Lardner LLP - San Diego Office
  • The term “hostile environment” has become a buzz word used by employees to complain about everything from a chatty co-worker to a malfunctioning computer. Many human resources professionals are inundated with employee complaints of such “hostile environments.” Employers have a duty to investigate complaints about illegal harassment, and what’s more a complaint about perceived unlawful harassment may be “protected activity,” meaning that an employee who is subject to an adverse employment action on the heels of such a complaint might have a basis for a retaliation claim. Given these risks, employers can find themselves in a web of never-ending investigations and in constant fear of liability every time an employee uses the magic words “hostile environment.”

    Under federal and state anti-discrimination laws like Title VII, “hostile environment” harassment is defined as conduct based on a protected category (such as an employee’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information) that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

    The mere fact that an employee co-opts the term “hostile environment” should not automatically turn every employee irritation into a legal claim. It is therefore important to determine and communicate early on whether a complaint appears to be about a perceived hostile environment as that term is defined under Title VII or merely a complaint about a general workplace annoyance unrelated to a protected classification. Involving the employee in this assessment can help clarify the issue for both the employer and the employee. For example, if an employee complains that his cubical-mate plays music too loudly and this is creating a “hostile environment,” the employer is well-advised to find out immediately whether the music is in some way offensive to the employee because of a protected classification, if the employee believes the music is being played loudly in order to harass the employee based on a protected classification, or whether this is simply an issue of the high volume annoying the employee. A best practice would be to get the employee to document the complaint in writing and to state whether or not the employee thinks the actions are based on a protected category. Of course, if the employee does, the employer should find out why the employee believes that and what evidence the employee has to support the belief. Once the employer and employee agree on the scope of the complaint, the employer can investigate accordingly. Including the employee in this determination, obtaining a common understanding of the nature of the complaint and documenting the investigation will often protect against future disputes over whether an employee complained about or was subject to a “hostile environment.”

    Another practice that helps ward off the improper use of the term: define it well in your anti-harassment policy. Make sure that the company’s definition of harassment mirrors the legal definition, so that employees are aware of what the term means.