Written by attorney Randy T. Enochs

Establishing a Hostile Work Environment Claim

One of the most common inquiries I receive and words used by potential clients involves "hostile work environments." This common inquiry always brings to surface the common misconception that "crappy" work places are actionable under a hostile work environment claim with nothing else--that is, not based upon Title VII protections, OHSA violations or labor law violations. I generally attempt to probe for any sort of protected activity and generally ask whether the potential client believes the "hostile work environment" may be based upon their belonging to a protected class and then explain what is an actionable hostile work environment.

The Supreme Court of the United States held that in seeking to establish the existence of a hostile work environment, plaintiffs must show that their work environment was both objectively and subjec- tively offensive—that is, “one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so."See Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). In determining whether an environment is sufficiently hostile to support a claim, the Supreme Court has instructed courts to cast a wide net and consider the totality of the circumstances. The circumstances include “the frequency of the discrim- inatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive ut- terance; and whether it unreasonably interferes with an employee’s work performance." Faragher, 524 U.S. at 787- 88.

To qualify as a hostile work environment, the conduct at issue must be severe or pervasive enough to cause psychological injury, al- though Title VII “comes into play before the harassing conduct leads to a nervous breakdown." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). In addition to showing that the environment was sufficiently serious, the plain- tiff must show that the harassment was based on mem- bership in a protected class, Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir. 2002), and also that there is a basis for imputing liability to the plaintiff’s employer. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998).

Showing a hostile work environment is not easy and there have been many, many cases where a plaintiff is able to show deplorable conduct on the part of the employer but under the totality of the circumstances standard, the facts do not pass muster. Every case is different and it is conceivable that a single, isolated incident in the workplace may amount to a hostile work environment, but employees are always encouraged to take their concerns and complaints up with the employer first as resolving workplace issues short of litigation is always ideal.

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