9 Things Employers Must Know About Hostile Work Environment

A workplace is an unlawful hostile work environment when conduct creates a work environment that is offensive, hostile, or intimidating to reasonable people.

By Brad Nakase, Attorney

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Preventing a hostile work environment is a lot cheaper than defending against a hostile work environment lawsuit. A workplace environment is considered to be hostile if it intimidates employees. In this sense, an environment is also hostile if unwelcome conduct frightens employees and makes them uncomfortable.

The term “Hostile work environment,” as the law defines it, raises various questions:

What are some of the indications or features of a hostile work environment?
What is the type of conduct that is considered “unwelcome”?
How severe or frequent does the unwelcome conduct have to be to create a hostile environment?
How is it determined that the issue isn’t just dissatisfaction—those workers are scared or intimidated?

Answering questions of this nature will help us ascertain what constitutes a hostile work environment. Specific improvements or changes may be necessary to make a workplace more pleasant or productive. But these alone don’t mean that the workplace is hostile or open to a legal complaint. If a company does have a hostile environment as defined by law, then action must be taken.

1.What Is a Hostile Work Environment?

Determining whether a workplace has any liability requires a review of the laws about hostile work environments. Under the law, harassment that causes a hostile workplace is defined as follows: “unwelcome conduct that is based on race, color, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”

Under this rule, any discriminator actions or harassment, or both, that are discriminatory can generate a hostile environment. In turn, this may result in a lawsuit against the company and hurt its reputation.

Yet, at the same time, not every work environment that is just unpleasant is necessarily illegal. The EEOC (the Equal Opportunity Employment Commission) has stated that it does not consider certain conduct illegal. That specifically includes “petty slights, annoyances, and isolated incidents (unless extremely serious).” Some conduct may fail to be judged criminal. For instance, that might include inappropriate (but non-discriminatory) jokes to a coworker or belittling or overworking others. In cases like that, employees filing EEOC complaints about a hostile work environment would have difficulty winning.

Yet, as long as the sole purpose is to avoid lawsuits, the distinction does matter. Any employer should prioritize eliminating workplace bullying and minor, trivial issues. Naturally, staff retention and productivity are enhanced through a respectful, fair environment.

2. What is unwelcome conduct?

Discrimination, violence victimization, harassment, and inappropriate sexual conduct will qualify as unwelcome conduct. So do many other offensive types of behavior. If they go on consistently and purposefully, then any or all of these things create a hostile working environment.

A single incident involving misconduct may create a hostile situation for one individual. But that alone probably won’t make a hostile work environment affect everyone.

Someone who makes a sexist remark about a colleague ought to face repercussions. Yet the isolated, off-handed comment alone is not likely to foster a hostile workplace.

Conversely, if the person remarking is a manager or does not stop doing it, then such conduct can create, under law, a hostile work environment.

3. Signs Of a Hostile Work Environment

Specific characteristics signal a toxic workplace. These include employees experiencing symptoms of burnout, arguing often, and complaining of being underappreciated or underpaid. Other danger signs include lack of resources, absenteeism, job insecurity due to layoffs, etc.

A hostile work environment produces fear, apprehension, and official complaints to HR about bullying or discrimination.

Severe incidents involving this misconduct may be relatively uncommon in real life. Yet severe misconduct, including sexual assault, can and does occur in workplaces. In turn, any conduct of this extreme nature—even if it happens only once—generates a hostile work environment.

4. What Behaviors Constitute a Hostile Work Environment?

Some examples of a hostile work environment include the following:

Sexual or racial harassment.These two behaviors will always produce a hostile working environment for employees or workers. It is entirely unacceptable for anyone to make vulgar, crude remarks based upon gender or sexual orientation in today’s world. Nor can any organization tolerate racial slurs or ridicule based on race, gender, religion, national origin, and so forth. If an organization should do so, it is not a healthy work environment. If the company has already received complaints of such conduct or discussion about is going around, the result will be increased workplace hostility.

Discrimination of any kind.An example of this could be a hiring manager who rejects applicants beyond a given age, or female, Black, Hispanic, or foreign-born. The behavior of this sort indicates that the individual harbors bias against these classes of people. And it is likely that such a person already fails to act appropriately towards any employee belonging to these groups. Bias can foster and generate a hostile workplace—and many nations have strict laws banning discrimination.

Consistent aggressiveness.Perhaps the VP in charge of sales can be repeatedly overheard vehemently yelling at personal assistants or abusing senior business development staff. That could be a telltale sign indicating that teams face a hostile workplace that victimizes them daily. Resorting to passive-aggressive behavior or pushing coworkers or subordinates to the unhealthy competition may well be legal but still sends up a red flag.

Ridiculing or victimization.It’s normal enough among colleagues for people to occasionally play pranks on each other or engage in a bit of teasing. But a cruel joke humiliating or frustrating an employee, or perhaps a social media site devoted to ridicule—signals a hostile workplace. It is thoroughly unacceptable to target employees or colleagues for any public humiliation. Today’s greater focus on cyber-bullying proves the point well.

Lots of complaints and punishment threats.If a company is plagued with frequently filed complaints, supervisors often speak of disciplining employees. Even if managers do not encounter official complaints, they must stay alert for conversations that turn to personal workplace experiences.

Subjective feelings.A person’s gut instinct can reveal whether or not a workplace is furnishing a good environment. If employees often feel threatened or miserable, such signals a hostile work environment. It is crucial to remain on the lookout for anyone who sabotages or slanders others, acts offensively, disrespectfully, or with vulgarity, or belittles others. Such individuals might be generating a hostile work environment.

Whether viewing everything from outside the company or within it, keeping a lookout for these signs is critical to identifying wrongdoers. Managers can recognize inappropriate or undesirable behavior more readily because they regularly interact with team members.

5. How to remedy a hostile workplace

This question cannot be answered in one or two lines because poor work environments must be addressed case by case.

If an individual creates a hostile workplace, an obvious solution is to fire the offending culprit. Or at least warn the individual effectively to prevent it from happening again. Yet, matters may not always present themselves so simply. What can be done if the offender is the CEO? Or anyone else occupying an office above your authority level? Suppose the person is also the company’s best performer and desperately needed by the firm? Or what if some other unforeseen issues have arisen? It is also possible that the questionable behavior might not have been severe enough to warrant firing the person.

One approach to dealing with the problem could involve speaking directly to the person at fault. If the person is unwilling to change or cooperate, the next step is to approach the boss and explain the situation. A supervisor, of course, has the authority to persuade an offender to listen carefully and reform their behavior.

If it’s the CEO generating hostility, then one is faced with a more problematic situation. An attempt can be made to state the case by appealing to the person’s best interest in their capacity as CEO. One method is to provide performance data and address the nature of complaints. It might also be helpful to discuss the rates of staff turnover and the associated expense. Drafting a list of vital changes or a course of action is also beneficial.

Both managers and HR offices need to have the courage to fire employees—even stars—whose troubling behavior indeed poses ethical and legal risks. In some instances, even an unruly, out-of-control CEO can be forced to resign if enough pressure is brought to bear.

6. What if it’s problem of company culture?

At times, the entire organization, or just a significant part of it, contributes to the hostility. Such hostile work environment cases are the most difficult to resolve. Notorious macho or “bro” cultures will frequently target women or LGBTQ people in some companies or organizations. Then, a hostile work environment can be fostered even by seemingly “idle banter.”

One of the best-known examples has been Uber, the car-sharing service. Besides alleged instances of sexual harassment in its offices, Uber has also been charged with failing to do enough to protect passengers. Yet Uber is hardly alone in grappling with serious allegations. Some of its federal employees have recently sued the FBI, past, and present, for gender and racial discrimination.

Due to systemic discrimination and abuse cultures, it is hardly surprising that these two organizations found themselves targeted as hostile work environments. A company with a hostile work environment arising due to problems in its culture has a lot of work to do.

7. Company policy should address the nature of the problem

If the main issue, for example, is sexual harassment—which it often is—a company needs a policy clearly outlining different forms of harassment. It should mandate disciplinary actions against those engaging in sexual harassment. Since no universal consensus exists regarding the precise nature of unacceptable behavior, a company should have a detailed policy. Social media activity is an integral part of such conduct.

8. Executive buy-in

It is certainly possible that, on occasion, executives (particularly senior management) are deliberately fostering or even participating in the toxic company culture. Yet it is equally likely that others might have failed to notice it. This is especially true for people who are not involved in day-to-day operations. These executives should be approachable and willing to be spoken to openly. They should be receptive to data concerning complaints and information on legal risks. Provided that they understand the situation and reveal a willingness to address it, they should work on drafting a plan.

9. Paths of communication and appropriate behavior

Some statistics indicate that virtually every case of workplace sexual harassment goes undetected. This happens because many employers respond negatively to complaints, even retaliating against the complaining party (usually using dismissal). The behavior of this sort should be unacceptable at any severe and worthwhile company. Moreover, under regulations made by the EEOC, this kind of retaliation is also illegal.

A company should genuinely assure its employees that they can freely report any complaints. And the company should adequately investigate all complaints. They should stand ready to take action—against the perpetrator, not the victim—if compelling evidence has been found. Companies should also furnish correct advice to employees facing hostile work environments. The employer should assist with filing any necessary police reports or even civil lawsuits.

It should be possible to stop inappropriate immediately, nipping it in the bud before it escalates into harassment or even violence. Still, patience is necessary; broader cultural changes don’t occur overnight. A company or manager might hesitate to sow division among team members or oppress them, risking the loss of good employees. But the risk must be taken since failure to act is far, far riskier.

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