Hostile Work Environment

A hostile work environment is created as a result of harassment that makes individuals feel uncomfortable and unwelcome. Speech or behavior that creates a hostile work environment is unwanted, uninvited, offensive to a reasonable person, and severe or pervasive enough to adversely affect the person's work environment. The speech or behavior may be verbal, nonverbal, and/or physical, and may be based on race, religion, sex, national origin, age, disability, veteran status, or, in some jurisdictions, sexual orientation, political affiliation, citizenship status, marital status, or personal appearance.

The primary challenge of harassment law is to define when speech or behavior becomes so severe and prevalent that it creates a hostile environment for the target. In general, when determining the existence of a hostile work environment, the court considers whether speech or behavior is appropriate in a workplace that strives to provide a pleasant, productive atmosphere for all employees.

Most antidiscrimination laws, such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and various state and local laws, do not explicitly discuss harassment. These laws prohibit discrimination in the terms, conditions, or privileges of employment; however, the courts have interpreted these definitions to bar not only discrimination as it is traditionally understood but also harassment that may create a hostile work environment.

On its face, harassment law draws no distinction between slurs, pornography, political, religious, or social commentary, jokes, art, other forms of speech, and unwanted physical contact. All can be punished, so long as they are severe or pervasive enough to create an intolerable environment for a reasonable person. The vagueness of the terms severe and pervasive and the fact that the law is implemented by employers who have an incentive to be more rather than less cautious, means that the law may practically restrict any speech or behavior that an employer concludes may be found by the courts to be severe or pervasive enough.

In the current legal environment, it is not enough for employers to prove that they followed standard procedures in response to complaints of a hostile work environment; they also need to demonstrate that they have been proactive in preventing the behavior from occurring in the first place. A comprehensive harassment prevention program will include clear definitions of what a hostile work environment is and why it happens, ongoing assessment of the work environment, education for all employees, skilled professionals to administer the program, and effective and consistent follow-through on all complaints with a zero-tolerance response to violations.