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Hostile work environment

Hostile work environments are created when an employee fears or dreads going to work because of harassment, shunning, or other oppressive behaviors.

What is a hostile work environment?

A hostile work environment is a situation where:

  • You are subjected to verbal comments, physical contact, or intimidation based on your race, color, gender, religion, disability, age, or national origin.
  • This conduct is unwelcome.
  • This conduct is severe enough to alter your employment environment to the point where it becomes abusive or hostile.
  • You perceived the environment to be abusive or hostile.
  • A reasonable person would perceive the environment as abusive or hostile.

A single case of discrimination or harassment does not create a hostile work environment. For the environment to be hostile, the circumstances must include more than a few isolated cases and must usually involve more than one person.

Certain states recognize additional protected classes. For instance, New York includes gender identity, sexual orientation, pregnancy, and credit history.

What is a “reasonable person”?

Many employment laws mention a “reasonable person.” This refers to a hypothetical person with normal judgment for their demographic. In other words, would the average person consider the workplace hostile?

Are hostile work environments, discrimination, and harassment the same thing?

Harassment and discrimination are often a product of a hostile work environment, but they’re separate violations of your civil rights. A person can harass or discriminate against you without making your workplace hostile. For instance, if a supervisor denies your application for a promotion based on your gender, you’ve suffered discrimination, but the supervisor’s behavior hasn’t necessarily created a hostile work environment.

How severe does the harassment have to be?

To meet the definition of a hostile work environment, the harassment must be “frequent, severe, and pervasive.” This means that the harassment must happen often and to extremes. This description might seem vague, but it refers to the “reasonable person” described above. If a reasonable person wouldn’t consider it pervasive or severe, neither will the legal system.

Additionally, the harassment or discrimination must interfere with your ability to do your job. For instance, you might find it impossible to take required breaks, enter a particular part of the workplace, gain promotions, or even go to work at all.

What you can do as a victim of a hostile work environment

A hostile work environment can make going to work unbearable, and even put your physical well-being at risk. Knowing how to recognize such an environment will help you protect yourself as well as your fellow employees.

How can you respond to a hostile work environment?

If you feel that you are working in a hostile environment, you have three basic options:

  1. Complain to your employer
  2. File a complaint with the state or federal government
  3. File a lawsuit

You don’t have to pick just one, but you’ll want to make a plan for how you’ll approach your situation. You might want to consult an attorney to help you decide how to proceed.

Complaining to your employer

If you suspect that your work environment might be hostile, you can complain to your employer. This is the best course of action if you’re not sure whether the harassment has created a hostile environment, or if you believe your employer can resolve the situation. 

Your first step is to find out who handles workplace harassment and discrimination claims at your company. In a small company, the appropriate individual might be the business owner or a supervising manager. However, larger firms tend to have dedicated human resources departments.

Provide your employer with any evidence you have collected about the abuse, such as audio recordings of verbal abuse (if legal in your state) or examples of written abuse that you have saved. You can also show your own documentation of each incident if you have recorded dates, times, and details for them.

Some companies might have specific forms to fill out if you feel you’re the target of abuse, harassment, or discrimination. You might need to confront the responsible party with your manager or HR representative, or follow other necessary steps laid out in your employer’s harassment policy. Telling the offenders that the behavior is unacceptable puts them on notice about the abuse.

Filing a federal or state complaint

Hostile work environment laws give you the right to file an EEOC (Equal Employment Opportunity Commission) complaint against your employer. In most cases, this is the step to take if your employer failed to resolve the situation and the abuse continues. 

It’s essential to act quickly, because you only have 180 days from the date of the harassment to file an EEOC complaint. You can report the hostile work environment directly to the EEOC, or to one of your state’s Fair Employment Practices Agencies (FEPAs). A FEPA complaint might be addressed faster because it’s a smaller organization with fewer cases to handle. Additionally, many FEPAs automatically file cross complaints with the EEOC.

After you file the complaint, either the EEOC or the FEPA (or both) will investigate your allegations. You’ll receive a charge number so you can reference the case when you communicate with the organization.

An EEOC or FEPA investigation can take many paths and might include:

  • Interviews with the employer and other employees
  • Collection of documents (such as in-house complaints)
  • Mediation between employer and employees
  • Issue of a Notice of Right to Sue (the organization giving you permission to file a hostile work environment lawsuit on your own)
  • Dismissal of charges if the organization doesn’t find a violation

EEOC and FEPA investigations can take anywhere from a few days to several months. If the organization dismisses the charges or finds a violation, it will notify you. Regardless of the outcome, your employer cannot retaliate against you for making the complaint.

Filing a lawsuit

You might decide to file a lawsuit if you can’t get relief through complaints to your employer or to the EEOC. A hostile work environment lawsuit requires you to present your case in court. If the judge or jury finds that you are the victim of a hostile work environment, you might receive compensation from your employer.

Both state and federal courts can hear hostile work environment lawsuits. If your claim is based on a protected class that is unique to your state, you’ll have to file in state court. Otherwise, you can turn to the federal court system, which might offer faster resolutions thanks to lower docket numbers.

To succeed in court, you must prove that your employer knew about the hostility in the workplace and failed to remedy it. This carries a high standard of proof, so you’ll need to review your evidence to determine whether you have enough to convince a judge or jury.

While you can always file a lawsuit on your own, hiring an attorney will put you in a better position to win your case. A labor attorney might:

  • Review your evidence and let you know if it’s strong enough for court
  • Hire investigators or other third-party experts to gather evidence
  • Present your case in court
  • Negotiate for a settlement if applicable
  • Prepare your testimony and that of your witnesses

If you decide to settle your case, you and your employer come to an agreement outside of court. However, if your case goes to trial, the judge’s or jury’s verdict will determine the monetary award, if any, from your employer.

Hiring an attorney

You might benefit from an employment lawyer even if you don’t intend to sue. A lawyer can help you file an EEOC complaint or advise you about making complaints to your employer. 

Make sure your lawyer has experience with labor law, discrimination, harassment, and hostile work environments. You should also ask how the law firm charges its clients so you’ll be prepared for the bill. Attorneys can charge on contingency, which means that they only collect money if you win your case, or at an hourly rate, which means you pay for every hour worked.

You might have to pay a consultation fee and other expenses as your case progresses. Every lawyer establishes a unique billing structure, so you might see modified contingency billing procedures and other variations. A contingency agreement is more likely if you have a strong case.

Living with a hostile work environment can cause significant damage to your professional and personal life. If you think that you’re the victim of such an environment, contact an attorney and follow the steps outlined above to protect your rights. Even if your experience doesn’t rise to the level of “hostile,” filing a complaint can correct poor behavior in the workplace.

Matthew Allen Luber | Oct 25, 2019

What is Workplace Sexual Harassment?

What is Sexual Harassment? Sexual harassment includes any unwelcome verbal, visual, or physical conduct in the workplace. This can include conduct of a sexual nature or conduct based on someone’s sex or sexual orientation. Sexual harassment can be so severe that it creates a hostile work environment for the employee. Unwelcome Conduct Sexual harassment includes unwelcome and unwanted behavior. It is helpful if the victim informs the harasser that the conduct is unwelcome. The victim of sexual harassment should also inform the harasser that the conduct needs to stop. Sexual Conduct Sexual harassment includes conduct of a sexual nature. However, sexual harassment is not limited to sexual behaviors. Sexual harassment can also include inappropriate conduct based on an individual’s sexual identification or sexual orientation. For example, this can include discrimination against an employee because of the employee’s sex. Many different types of actions of a sexual nature may be sexual harassment. This may include verbal, physical, nonverbal, or visual conduct. For instance, inappropriate touching and sexual jokes may both constitute sexual harassment, although they take different forms. Severe or Pervasive Conduct The unwelcome conduct must either be severe or pervasive. Conduct is severe if it includes a very serious incident. For example, severe conduct may refer to rape or attempted rape. However, the conduct may also be pervasive. Pervasive conduct occurs when the harassment is less severe, but happens frequently or continues over time. Multiple minor incidents can accumulate to a sexual harassment claim if the incidents affect the victim’s work environment. For instance, this may include frequent and persistent sexual comments to an employee over time. Conduct that Affects Work Environment Sexual harassment can create a hostile work environment for the victim. Inappropriate and unwanted conduct at the workplace can make the victim feel uncomfortable and unsafe. Every person should feel comfortable where they work. But, this type of harassment can create a hostile work environment for the victim, affecting the victim’s work performance. Sexual harassment can also affect the victim’s working conditions. For example, the victim rejecting sexual advances may be fired, demoted, or refused a promotion. The sexual advances can not only leave the employee feeling victimized and unsafe, but can also lead to the victim losing money or job opportunities. Contact Us You should always feel comfortable and safe where you work. If you have experienced sexual harassment, the Middletown sexual harassment lawyers at McOmber & McOmber, P.C. can help you. Please call our Red Bank office at 732-842-6500, our Marlton office at 856-985-9800, OR contact us at 888-396-0736 or online for a free consultation. We represent all clients in Middletown, Cherry Hill, and throughout New Jersey.

Lauren Ashley Macdonald | Sep 25, 2019

Sex Discrimination: Rumors in the Workplace

Parker v. Reema Consulting Services: Facts of the Case A male colleague employed at Reema Consulting Services Inc. started a rumor that the plaintiff, Evangeline Parker, received six promotions in a little over a year due to sleeping with her boss. The male colleague did not receive comparable promotions at Reema Consulting Services, Inc. The rumor was well-known throughout the Company and was even spread further by the highest-ranking manager at the warehouse who asked the man accused of sleeping with the plaintiff “hey, you sure your wife ain’t divorcing you because you are f--ing [Parker]?” Id. at 300. As the rumor spread, the plaintiff "was treated with open resentment and disrespect" from many coworkers, and her "work environment became increasingly hostile." Id. The plaintiff complained to the manager of the warehouse about his comments and the manager informed her that “he could no longer recommend her for promotions or higher-level tasks because of the rumor.” Id. When the plaintiff filed a sexual harassment complaint with human resources at Reema Consulting Services, Inc., she was told to stay away from the employee who started the rumor against her. Eventually, the plaintiff was given two written warnings and was terminated from the Company. Thereafter, the plaintiff filed a claim for sex discrimination. Court Holding While the District Court dismissed the plaintiff’s claim because it found that the allegation was based on alleged conduct, not the plaintiff’s sex, the Fourth Circuit of Appeals reversed the lower court’s decision. The court stated that “the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally woman, not men, use sex to achieve success.” Id. at 303. Altogether, the court found that the plaintiff plausibly alleged that she suffered harassment because she was a woman. The Fourth Circuit Court of Appeals includes the federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Based on this case, employers may be held liable for sex discrimination when management encourages the spread of rumors in the workplace and the rumors cause an adverse employment action to the employee. Employers should be vigilant in quashing rumors when they begin and appropriately responding to complaints of rumors and sex harassment. This case shows how Courts have increasingly been taking a broad view of sex discrimination and harassment in this #MeToo era.

Helena Kempner Kobrin | Aug 16, 2019

CALIFORNIA SEXUAL HARASSMENT PREVENTION

California Government Code section 12950.1 requires all employers with five or more employees to provide sexual harassment prevention training no later than December 31, 2019. Managers are to receive a minimum of two hours of training. All non-supervisory employees must complete a one hour minimum. All managers and other employees must retrain every two years thereafter. There are special rules for new hires, seasonal workers, and temporary employees. New hires must be trained within six months of their start date. Seasonal and temporary employee training is within 30 calendar days of hiring, or before the employee works 100 hours, whichever occurs sooner. We offer half-day on-site group seminars as a superior alternative to online training. Our materials derive from over 10 years of delivery, with real-life, experienced instruction on identification, prevention and internal resolution of workplace harassment, discrimination, and retaliation. The compelling reasons to offer a live session to your workforce include: • Interaction with trainer and participants, with ability to apply principles to specific work conditions; • Immediate answers to questions, benefitting all attendees; • Employees typically pay closer attention; • Proper emphasis on relative importance; • Preventative measures emphasized; • Live training confirms company commitment to effectively addressing and preventing unlawful or inappropriate workplace conduct; and • By the bulk of feedback we’ve received, our live sessions are engaging, even fun! See also: • This Time It’s Personal (June 2019) • Required Training on Sexual Harassment Prevention (May 2019) • The #metoo Movement’s Impact (April 2019) • Stopping the Jerks and Lurks (April 2019) Contact us TODAY for more information, costs or to schedule your seminar at (626) 583-6600 or [email protected]

Gayle Lenore Eskridge | Aug 5, 2019

Townley v. BJs Restaurants

Recent Case A recent California case, Townley v. BJ's Restaurants, decided the issue of whether employers are required to reimburse employees for the cost of slip-resistant shoes as “necessary expenditures” under Labor Code section 2802. Townley, a server at BJ’s, sued her employer on behalf of herself and other aggrieved employees because it had a safety policy which required all hourly employees to wear black, slip-resistant, close-toed shoes, but did not reimburse employees for the purchase of the shoes. In deciding this issue, the Court of Appeal was persuaded by an almost identical (but unpublished) case Lemus v. Denny’s Inc. (9th Cir. 2015) 617 Fed.Appx. 701. Tie In To Lemus In Lemus, the Ninth Circuit held that Labor Code section 2802 (which requires an employer to reimburse employees “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . .”) did not require Denny’s to reimburse the cost of its employees’ slip-resistant footwear. The plaintiff did not present any authority that applied Labor Code section 2802 in a way that required the employer to pay for non-uniform work clothing. California law requires employers to pay for employees’ work clothing when it is considered a “uniform” or “qualified as certain protective apparel regulated by Cal/OSHA.” [Id. at 703.] Further, the Lemus court explained that the California Division of Labor Standards Enforcement “DLSE” has clarified that employers are not required to furnish basic wardrobe items that are “usable and generally usable in the occupation, such as white shirts, dark pants and black shoes and belts, all of unspecified designed . . .” [Id.] Here, like Lemus, Plaintiff could not establish that the slip-resistant shoes were part of BJ’s uniform or were not “generally useable in the restaurant occupation.” BJ’s policy did not require its employees to purchase a specific brand, style, or design of slip-resistant shoes, nor did it prohibit its employees from wearing their shoes outside of work. As such, the cost of the shoes did not qualify as a “necessary expenditure” within the meaning of Labor Code section 2802.

Matthew T Famiglietti | Jul 3, 2019

Federal Sector Employment Discrimination

Filing an Informal Discrimination Complaint If a federal employee believes that he or she is or has been discriminated against by their agency, on the basis of race, color, religion, sex, national origin, and disability, the employee may file an Informal Complaint within 45 days of the alleged act of discrimination and/or retaliation emanating from the alleged discrimination with the internal agency Equal Employment Opportunity Commission (EEOC) office. During the informal stage, your Informal Complaint will be assigned to a counselor within the internal EEOC office. The EEOC person assigned to your case, will usually perform a very perfunctory, short investigation of the alleged discrimination and/or retaliation. This investigation usually amounts to talking with the alleged perpetrator of the discrimination, usually a direct supervisor or deciding official, that played a role in the alleged discrimination and/or retaliation. Additionally, during the Informal Complaint stage, the Complainant will be given the opportunity to participate in Alternative Dispute Resolution (ADR). Both the Complainant and management must agree to an ADR session. It is not sufficient for the Complainant to agree to ADR if the agency does not agree to ADR as well. Most times, the internal EEOC office will find no discrimination or retaliation. It is like the fox guarding the chicken coop. At the end of the informal stage, the EEOC office will conduct an exit interview with the Complainant, usually over the phone and inform the Complainant of the finding of no discrimination or retaliation. At that time, the Complainant will be told that they have 15 days from the date of the closing of the Informal Complaint to file a Formal Complaint. This right will be mailed to the Complainant. Please note that a Complainant may be represented by an attorney or another representative of their choosing, at all stages of the complaint process, including the Informal Complaint stage. Filing a Formal Complaint When a Complainant chooses to file a Formal Complaint, an investigator is assigned to that Formal Complaint. The investigator assigned by the internal EEOC agency is usually an independent contractor that does not work for the federal agency itself, although, there are times when the investigator is an employee of the federal agency. The best practice for federal agencies is to assign an investigator who is an independent contractor and has no connection to the agency being investigated. This best practice ensures at least, from a perception point of view, that the investigator is impartial in conducting the investigation in a fair manner. However, in actuality, this is not always the case. I have dealt with many independent investigators over the years, regarding federal sector complaints, and have found like anything else in life, there are some very good investigators that are fair to both sides and have found a number of independent investigators who are in the tank for the agency. The investigation, under EEOC regulations, is to be completed within 180 days of the fling of the Formal Complaint. Most agencies do not meet this deadline. It is not uncommon for a federal sector Formal Complaint to stretch on for more than 200 days. If the investigation of the Formal Complaint is not completed within 180 days, the Complainant has the option to either file in Federal Court and/or ask for an administrative hearing before the EEOC. Even though most of the investigations take longer than 180 days to complete, I encourage my clients to let the investigator finish the investigation before filing in Federal Court or asking for a hearing before the EEOC. I do this because I want a complete record documented by the investigator before asking for the hearing. During the investigation of the Formal Complaint, the investigator will conduct several interviews, including an interview with the Complainant and take sworn testimony from the Complainant in the form of an affidavit. Likewise, the investigator will also take the sworn statement of key management officials within the federal agency who are critical to the alleged discrimination and/or retaliation in each case. The Complainant is entitled to have his/her lawyer present during the taking of an affidavit from him/her about alleged discrimination and/or retaliation. The management officials involved in giving an affidavit to the investigator are also entitled to legal representation by agency attorneys. At the end of the formal investigation, the agency will provide a summary of rights to the Complainant which will include the right to file in Federal Court or to seek an administrative hearing before the EEOC. Once the Complainant receives the Notice of Rights, he or she can elect where to file the Complaint within 30 calendar days of receiving the Notice of Rights, or to withdraw his/her complaint. It is best to make a selection regarding which route the Complainant wants to proceed with, and to file the request for a hearing as soon as possible. Hurry Up and Wait! Once your hearing request has been filed with the EEOC or the Federal Court, you can count on a very long period of time before your hearing request is acknowledged or a judge is assigned to your case. It is taking at least a year and commonly much longer to have an Administrative Law Judge (ALJ) assigned or a Judge assigned in Federal Court. Many of my colleagues who practice in this area, as well as myself, can wait almost two years before having a judge assigned to the case. Once a judge is assigned, an acknowledgment order is sent to the two parties, the Complainant and the Defendant Agency. Discovery will then commence. Usually Discovery will be a relatively short period (usually 60-90 days) for both parties to gather information from each other to argue their cases. The first phase of Discovery is Interrogatories, which are written questions which are submitted to the opposing party. There is a limit to the number of Interrogatories you can ask. It is usually limited to 30 Interrogatories. Both sides may also request Production of Documents which are relevant to the matter at hand, and the number of Requests for Production of Documents is also limited to 30. Finally, both sides may request what we refer to as "Admissions." This is where each party stipulates certain facts to be true or untrue. These Admissions are usually limited to 30 in number as well. One important point to make is even though you have the right to do 30 Interrogatories, you can do less. The same is true with Requests for Production of Documents and Admissions. Also, each side will be given the opportunity to do a limited number of Depositions. Depositions are sworn statements under oath given before a court reporter. The number of Depositions allowed will vary from judge to judge. At the conclusion of the Deposition stage, each side can move for what is referred to as Summary Judgment, arguing that there are no genuine issues of material fact in dispute between the parties. These motions will be decided by the judge. It is important to note that even though a Complainant may request a hearing, the Complainant is not automatically entitled to a hearing if the judge determines, based on the evidence, that there is no genuine issue of dispute supporting the Complainant's case. Finally, a judge's decision to grant Summary Judgment motions by each side, can be appealed to the Equal Employment Opportunity Commission. A judge's hearing decision can also be appealed by either party.

Michael Astanehe | Jun 25, 2019

Dealing with Bullies at Work

Start Documenting the Bully at Work Keep a log of every interaction with the bully at work. Write down an entry each time you experience bullying. Make sure each entry includes what happened, the time and date of the incident, all people involved, – including witnesses who might have seen or heard anything – and why the conduct constitutes abuse. The log will not only provide a timeline of the workplace bullying but also ensures that you will not forget critical details later on. Make sure to emphasize any interaction that includes bullying based on a legally protected characteristic, such as race, ethnicity, gender, sexual harassment, sexual orientation, disability, religion, age, national origin, marital status, or pregnancy. This type of conduct is not merely workplace bullying but also constitutes workplace harassment. Report Workplace Bully to Your Supervisor or HR Often, individuals are not comfortable speaking directly to the workplace bully. Do not remain silent! The bullying will continue if you do. Instead of directly communicating with the workplace bully, consider reporting the bullying to your supervisor or human resources department. Make sure to report the complaint in writing, and indicate that the workplace bully is impacting your productivity, health, and morale. Remember to keep a copy of your complaint for your records. Employers are required to address complaints of bullies at work, or they will face exposure to legal claims. You may even consider providing practical suggestions as to how the employer can address workplace bullying. Form a Workplace Bully Victim Group If the bully at work targets other coworkers, get in contact with them and group together to address the problem. Ask your coworkers also to document the bully’s behavior. After building a collective case, file a complaint to HR as a group. This unified action will give your employer solid ground to take action against the workplace bully, and make it very difficult for them to ignore the problem. Request a Transfer If the bullying at work persists despite reporting it to your employer, you may consider requesting a transfer either to a different department or branch. Your employer should work with you to mitigate the bully, and if honoring the transfer request is the only way to address the problem, then they should honor it. Consider Leaving Your Employment Your health and well-being are most important, and compromising it for your job is not worth it. If you have done everything possible to eliminate workplace bullying, and your employer has either ignored you or refused to help, then it may be time to explore other options. Be sure to speak with an attorney before leaving your current employment. Leaving employment is a severe and life-altering decision that befits a consultation with an attorney. Further, you may have legal rights entitling you to damages for having to deal with the bully at work. If you are considering departing from your current employment, Contact Astanehe Law for your free consultation. Generally, workplace bullying is not illegal in California. However, your employer must take action to address hostile acts, including workplace bullying by coworkers and supervisors. Specific forms of workplace bullying may be illegal. Your employer cannot allow harassment or retaliation to occur. Additionally, your employer may have an anti-bullying policy. If you are the victim of workplace bullying, contact Astanehe Law for your free consultation. Astanehe Law has experience in protecting California employees from workplace bullies and will help you obtain justice!