Hostile Work Environment: How to Identify It, How to Handle It, and How to Know When to Quit

5 days ago

6 min read

What is a Hostile Work Environment and When can an Employee Quit?

Many potential clients reach out to me and tell me that they’re experiencing a hostile work environment. Most of the time I have to explain that what they’re going through (no matter how bad) does not meet the legal standard for hostile work environment. My answer is usually met with confusion. There is a major disconnect between what is considered socially unacceptable behavior and what type of behavior is legally considered hostile work environment.

Many of these potential clients will ask whether or not they can quit their job and what effect quitting can have. That answer is even more difficult. Most of the time, quitting a job can negatively affect your claims, including hostile work environment. Employees must prove that their resignation was really a constructive discharge. In other words, work became so intolerable that any reasonable person would have quit. The legal standard for constructive discharge is even higher than the standard for hostile work environment. It’s incredibly difficult, if not nearly impossible, to prove constructive discharge. This blog post provides examples of cases to explain the legal standards and also discuss the legal and practical considerations that arise when considering how to handle a bad work environment.

*This post contains strong language and describes offensive conduct.

The Legal Standard for Hostile Work Environment

Employees bear the burden of proving they worked in a hostile work environment. The legal standard is extremely difficult to meet. The harassment must be “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” Frequent, non-severe harassment, can satisfy the standard. One egregious event can be enough. How do you know whether the harassment is severe and pervasive enough?

There is no bright-line rule for determining whether harassment is bad enough to be considered a hostile work environment. Frequency is an important factor. Unless it’s egregious, one or even several disparaging comments spread over time don’t rise to a level of hostile work environment. When employees can’t show how the comments negatively affected their work, they cannot prove hostile work environment. The cases below contain examples of offensive conduct that courts held did not rise to the level of a hostile work environment.

A Black female employee sued her employer for hostile work environment based on her race and gender. The gender-based claim alleged that the employee’s female supervisor created a hostile work environment by:

· Commenting that she liked women with “big breasts and big butts” shaped like the employee’s;

· Telling the employee that she “would know what to do with a woman” like her;

· Discussing how she and another female coworker had sex with the same woman;

· Discussing going to strip clubs;

· Asking the employee three times if she was bisexual; and

· Patting the employee on the shoulders and trying to touch her on the hands.

The court concluded that none of this conduct was severe or pervasive enough to create a hostile work environment. The court explained that offensive utterances that happen every few days are not actionable when they aren’t severe, physically threatening, or humiliating. The touching was unwanted and offensive but did not threaten the employee. The court further explained that simple teasing, offhand comments, and isolated incidents (unless extremely serious) are not enough to change the terms and conditions of employment. The court dismissed the claims for hostile work environment based on gender.

The employee also alleged hostile work environment based on her race. These allegations included:

· That she was the only Black employee in the store during her shift;

· That the Hispanic supervisors would use racial slurs while speaking Spanish;

· That Black employees were forced to do “harder, dirtier tasks”;

· That a supervisor said the store was better without African American employees;

· That supervisors referred to Black employees as “monkey faces”;

· That a supervisor commented that all Black employees “smelled like s**t”.

The court concluded that these comments did not create a hostile work environment. The court reasoned that “hostile work environment jurisprudence ‘does not prohibit all verbal or physical harassment in the workplace.’” The court elaborated that the employee’s allegations that the supervisors “regularly stated their dislike for black employees” is, on its own, insufficient to establish hostile work environment.” The court faulted the employee for not explaining how the statements affected her work, not explaining the frequency of the comments, not explaining how the comments were directed at her, and not showing how the conduct embarrassed or threatened her.

As these examples indicate, courts can have very narrow views of what constitutes hostile work environment. This is not to say that similar comments will never support a hostile work environment claim. The result may have been different if the employee had been able to give more detail about the frequency of the behavior. If she could have shown that her supervisors made these comments on a daily or weekly basis, the court may have found that they were frequent enough to show a hostile work environment. Had the employee also been able to explain how the comments affected her at work, the court may have been more inclined to conclude that the conduct was severe or pervasive. Hostile work environment is more than just the comments or behavior. Employees must be ready to explain how it affected them, how often the comments or behavior occurred, how the comments or behavior are directed at them, and how the comments or behavior embarrasses or threatens them.

What is Constructive Discharge?

Constructive discharge is even more difficult to prove than hostile work environment. Courts have explained that proving constructive discharge requires an even greater severity or pervasiveness of harassment than what’s needed to prove hostile work environment. Employees must show that work was objectively so intolerable that any reasonable employee would have felt compelled to resign. If the conduct isn’t enough to prove hostile work environment, it won’t be enough to prove constructive discharge.

Relevant factors used to determine whether there was a constructive discharge include:

· Demotion;

· Reduction in salary;

· Reduction in job responsibilities;

· Reassignment to menial or degrading work;

· Reassignment to work under a younger supervisor,

· Badgering, harassment or humiliation calculated to encourage the resignation; or

· Offers of early retirement or continued employment on less favorable terms than the employee’s former status.

Courts expect that an employee will try to work issues out with their employer before quitting. Resigning before complaining to human resources or a manager can hurt a claim. However, if the employer gives the employee an ultimatum to quit rather than be fired, the employee can prove constructive discharge so long as they prove that the termination was going to happen. For example, when a boss tells an employee it would be better to resign than be terminated because it can affect future employment or when an employer tells an employee to find another job within a week or they would be placed on indefinite leave.

Like hostile work environment, there aren’t any bright-line rules. Many claims fail because the employee only alleges harassment. As previously noted, constructive discharge requires the employee to prove that the harassment was worse than harassment that would be considered hostile work environment. The more factors an employee can prove, the more likely they can prove constructive discharge. Before quitting, it's incredibly important that an employee weigh the pros and cons and whether there is enough evidence to support a claim.

Practical Tips for Handling a Hostile Work Environment

Ultimately, the decision whether to quit or not is a decision that the employee has to make. If a job is so intolerable that it’s negatively affecting your health or well-being, it might be best to leave. Doing so might mean that you can’t bring a discrimination claim but it could mean that you get to move on to a better opportunity. Some people find it better to find a new job and move on to avoid the stress and uncertainty that can come with filing a complaint or lawsuit. Hostile work environment and constructive discharge claims are extremely difficult to prove and should be not viewed as a guaranteed source of compensation.

One of the most important things that an employee can do is to report the behavior. When employees report behavior that they genuinely believe is discriminatory, they are protected by anti-retaliation laws. There’s no guarantee that an employer won’t retaliate but if they do the employee may have a claim for illegal retaliation. Retaliation claims can be easier to prove than hostile work environment and constructive discharge. If an employer is good, they’ll work to fix the situation. If an employer is bad, it’s better to have legal protections if something goes wrong rather than not report the conduct. In some cases, employers can even avoid liability if an employee did not report discriminatory conduct. Plus, courts expect that employees will try to resolve issues before resigning.

Schedule a Consultation

Handling a hostile work environment alone can be difficult. These situations are tricky, and an attorney can help guide you through how to handle the situation with an employer or take legal action on your behalf. If you believe that you’ve been subject to discrimination and a hostile work environment, complete the contact form to request an initial consultation.

*This post is for informational purposes only. Every situation is different and no outcome is the same. If you're experiencing a hostile work environment

you should consult with an attorney for advice specific to your situation.