The Warshawsky Law Firm Blog

Saturday, November 3, 2012

Do I Have A Case For Hostile Work Environment?

As an employment lawyer, I frequently receive calls or emails from potential clients telling me that their boss is "always harassing" them at work and asking me if they "have a case for hostile work environment"?

Sometimes they do.  Unfortunately, more often they do not.  Why not?  Two main reasons:  First, because the kind of harassment they are experiencing is not prohibited by federal, state, or city employment laws.  Second, because the amount of harassment they are experiencing is not sufficiently serious to be actionable in court.

Regarding the first reason, workplace harassment is not illegal unless it is based on an employee's "protected characteristic."  The term “protected characteristic” refers to certain physical and social traits that are deemed by the law to be unrelated to a worker’s occupational abilities, including age, sex/gender, race/ethnicity, religion, marital status, pregnancy, disability, and sexual orientation.

Federal, state, and city employment laws only protect workers from discrimination, including workplace harassment, based on their protected characteristics.  These laws do not protect workers from "unfair" treatment generally, nor do they impose a "general civility code" on the workplace.  (Of course, any harassment that becomes physically threatening may be illegal under state tort law.) 

Thus, as a general rule, it is not illegal for a boss to criticize workers harshly, to call them insulting names, or to use profanity.  On the other hand, if the harassment is directed at an employee's sex or race or disability or other protected characteristic, then it is illegal.  Indeed, the hallmark of an unlawful hostile work environment is the use of discriminatory epithets about a person.

The use of a few epithets, however, usually is not enough to create an unlawful hostile work environment.  Although the use of any epithets may upset the employee, to be actionable in court the workplace harassment must be sufficiently severe or pervasive that a reasonable person in the employee's position would find the overall work environment to be hostile or abusive.

In making this determination, courts examine the totality of the evidence, including the frequency and severity of the incidents, whether they were physically threatening or humiliating, whether they interfered with the plaintiff’s job performance, and whether they affected the plaintiff psychologically.  As a general rule, incidents must be more than isolated or episodic; they must be sufficiently continuous and concerted to be deemed pervasive.  However, there is no fixed number of incidents that a plaintiff must endure to establish a hostile work environment.  Even a single incident can create a hostile work environment if it is sufficiently severe.  On the other hand, petty slights, minor annoyances, and simple lack of good manners are not enough to create a hostile work environment.

In other words, the law imposes a threshold level for harassing conduct in the workplace.  If the alleged harassment falls below this level, it is not actionable in court, i.e., the employee does not have a case.  If the alleged harassment exceeds this level, however, then the employee does have a case.  Importantly, federal, state, and city laws do not impose the same threshold level.  The New York City Human Rights Law imposes a significantly lower level than federal and state law, which means that employees in the five boroughs enjoy greater legal protection from workplace harassment.    

Although there is no mathematical test for determining when the amount of harassment is "enough," a knowledgeable and experienced employment lawyer is able to evaluate a person's situation in light of existing case law and assess the likelihood of success in court.

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