Our Award Winning New York Employment Lawyer has been asked to discuss the definition of a hostile work environment. Most people associate this phrase with sexual harassment cases only but that it is not accurate. An individual may allege workplace harassment based on other protected categories including race, national origin, religion, and disability. This is a key difference between from Quid Pro Quo harassment claims, which are limited to sexual harassment matters. Quid Pro Quo harassment cases are discussed in another blog post, which can be found here. One last point of introduction – male and female employees both can bring hostile work environment claims due to conduct by the same sex or opposite sex.
Under applicable federal (i.e., Title VII of the Civil Rights Act of 1964) and state law, an employee (or former employee) must show that the work environment was permeated with “discriminatory intimidation, ridicule and insult [that is] sufficiently severe or pervasive enough to alter the terms and conditions of the victim’s employment and create an abusive work environment.” The analysis of the claim is fact specific and will depend on the totality of the circumstances. Courts and administrative agencies will consider multiple factors including:
(i) The frequency of the alleged conduct – How often did it occur? In general, a one-time incident may not rise to the level; however, it may be sufficient in cases involving assault or other egregious unwanted physical contact. An isolated unwanted compliment may not rise to the level required but repeated innuendos, compliments, or advances may be sufficient. Typically, hostile work environment cases involve allegations that are repeated over a period of time.
(ii) The severity of the alleged conduct – In cases involving physical contact, the inquiry may focus on whether the employee was touched in an accidental manner or if the harasser intentionally assaulted the victim by touching his or her body. Unwanted physical contact is not required for a hostile work environment claim.
(iii) Whether the conduct was physically threatening or humiliating or if the conduct was a mere offensive utterance. This will depend on the specific allegations and the intensity contained therein. The inquiry may focus on whether the conduct was directed at an employee on a repeated basis due to the employee’s protected class (e.g., gender, race, national origin, disability).
These factors are considered from an objective and subjective perspective meaning the courts will look at whether the victim felt like he or she was harassed and whether a reasonable person would have felt harassed under the circumstances. Importantly, a victim does not necessarily need to show that his or her performance was impacted but just that the harassment had an effect on the work environment.
Employers often defend claims by arguing that the alleged conduct did not rise to the severe or pervasive standard by poking holes in the factors described above. Since these cases are fact specific and, in many instances are “he said/she said” scenarios, victims should keep detailed notes of each incident describing the incident and identifying any witnesses. Furthermore, victims should preserve all evidence of harassment, which can include text messages, email messages, voice-mail messages, greeting cards, pictures, and letters. It is important for victims to come forward – while it can be difficult, victims should know that the law provides for protection from retaliation. In general, employers are prohibited from retaliating against an employee who makes a good faith based complaint of discrimination or harassment.
There is a lower burden of proof for hostile work environment claims governed by the New York City Human Rights Law. Under the city law, a victim must show that he or she was treated “less well” than other employees based on his or her membership in a protected category. The issues of severity or pervasiveness are not considered for liability purposes but they will be considered when computing damages. The City Human Rights Law has been called employee friendly.
This is a general discussion of hostile work environment claims. These cases are fact specific and the analysis will depend on the circumstances and the applicable law. If you have any questions or concerns about your workplace, contact our Award Winning NY Employment Lawyer and learn your rights and how to fight back. Sexual harassment is wrong and should be tolerated.
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