Workplace bullying and its damaging effects have been hot topics in the news recently. In these stories, a generally toxic office culture is often discussed interchangeably with the legal concept of a hostile work environment. Yet a crucial difference exists between these two concepts: only a hostile work environment provides an actionable claim in court under Title VII of the 1964 Civil Rights Act and related anti-employment discrimination laws.

What Is A Hostile Work Environment?

What then separates, on the one hand, a workplace that is miserable due to a boss who is a jerk to the entire staff and, on the other hand, a Title VII hostile work environment claim? The key is that the abusive conduct must be related to the employee’s race, sex, religion, etc. (otherwise known as a protected characteristic) in order for the mistreatment to be unlawful under Title VII and related laws. For example, if a manager has everyone walking on eggshells because they yell constantly and set unattainable goals/deadlines—but this abuse is directed to all employees—then this is not illegal under Title VII. If, however, the supervisor treated only female employees this way, then these women could pursue a hostile work environment claim if the inequity is based on their sex.

And the Supreme Court has made clear that employers cannot create a hostile work environment that treats certain employees poorly because of, for example, their race, sex, or sexual orientation/gender identity.  To determine whether a work environment is hostile or abusive must be reviewed by “looking at all the circumstances” of the environment, which includes:

• the frequency of the discriminatory conduct;
• the severity of the conduct;
• whether it is physically threatening or humiliating, or a mere offensive utterance;
• whether it unreasonably interferes with an employee’s work performance

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

Does The Employer Have A Defense?

If a supervisor creates a hostile work environment for an employee, then the employer will escape liability only if it can prove:

• it reasonably tried to prevent and promptly correct the harassing behavior; and
• the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762-63 (1998); Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).

If a non-supervisory employee harasses another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.

Importantly, the employer is automatically liable and has no defense in a hostile work environment case if a supervisor takes a tangible employment action against an employee, such as firing or demoting them. Ellerth, 524 U.S. at 762-63; Faragher, 524 U.S. at 790.

Hostile Work Environment Cases Can Lead To Big Verdicts

A hostile work environment is not only illegal, it can take a big chunk out of the employer’s pocket book. For example:

• In 2018, a jury awarded over $13 million to an employee in a hostile work environment/sexual harassment case (Mayo-Coleman v. American Sugar Holdings, Inc., 1:2014cv00079, S.D.N.Y.). Due to caps on the amount of damages that can be awarded under Title VII, this amount was later reduced.
• In a case against the New York Knicks, an executive sued the team regarding, among other things, a hostile work environment and the jury awarded $11.6 million in damages. Sanders v. Madison Square Garden, L.P., 1:06cv00589.
• In a racial hostile work environment case, the jury awarded $25 million to a Black employee who alleged that his employer failed to adequately address the racist statements, vandalism, and graffiti to which he was subjected. An appeals court subsequently ruled that the damages should be reduced. Turley v. ISG Lackawanna Inc. et al., 1:06-cv-00794.

States Continue To Debate Workplace Bullying Laws

No federal law makes general workplace bullying unlawful, but approximately 30 state legislatures have introduced legislation to outlaw workplace bullying. Only a couple of states have actually passed laws, which require certain employers to train employees about workplace bullying. Earlier this month, however, Puerto Rico passed an anti-workplace bullying law and this will definitely be a development to watch as it will have an outsize effect on whether more states enact this type of law.

Key Takeaways

When considering whether you may be working in a hostile work environment, remember:

• To be an actionable hostile work environment, rather than merely a toxic office culture, the abusive conduct must be related to the employee’s race, sex, religion, etc. (otherwise known as a protected characteristic);
• In certain circumstances, the use of incendiary racist/sexist comments can create a hostile work environment even if they are said only once;
• Physical touching/harassment, as opposed to verbal statements, is often viewed by courts as stronger evidence under the the “severe or pervasive” test; and
• Discriminatory statements of actions by a supervisor—as compared to a subordinate or co-worker—can also make for a stronger hostile work environment case.