Peacock Tales • Spring 2014

Bearing With Bad Behavior: When is Hostility in the Workplace Really "Hostile?"

By Rachel K. Lozosky

Comedian Jerry Seinfeld has been known to wrap up the punch lines of his witty observations on human behavior by shaking his head in resignation and declaring, “People. They’re the worst.”

I do not believe it is Jerry’s intention, nor is it mine, to declare a serious lack of faith in humanity. Rather, Jerry’s point is that all humans have an innate ability to occasionally annoy and aggravate one another. The humor and wisdom in his observation lie in the fact that, at one time or another, it has applied, or will apply, to all of us.

Unfortunately, even the best workplaces can, from time to time, provide a ready backdrop upon which the uglier aspects of human behavior are displayed. Often, this is through no fault of the employer. The basic elements of most workplaces - stress, deadlines, daily interactions with the same individuals in a closed environment - provide a crucible for the occasional negative interaction among employees. When an employee tires of a co-worker’s teasing, social slights, or unkind comments, he or she may decide it is time to call an employment attorney. Often, the employee’s first words to the attorney are, “I am the victim of a hostile work environment.” The employee’s assumption is that he or she has a legal cause of action against the employer. But is this really the case?

Various forms of unkind behavior meet the definition of “hostile” as that word is used in every day conversation or defined in the dictionary. However, a valid legal claim based on a hostile work environment requires several elements. First, a hostile work environment claim is really one of several causes of action under which a plaintiff can allege unlawful harassment or discrimination. This article addresses only hostile work environment in that context, and does not address the workplace conditions under which a person may be entitled to unemployment compensation if he or she voluntarily leaves a job, under a theory of “constructive discharge.”

In order to constitute unlawful harassment or discrimination under a hostile work environment theory, the conduct at issue must have been intentional and based on a characteristic which is protected under state and/or federal laws prohibiting discrimination in the workplace. Examples include gender, race, religion or national origin.

The alleged conduct must also be severe and pervasive. Occasional petty comments will typically not meet that standard. A court will consider whether the conduct was sufficiently severe to alter the conditions of the plaintiff’s employment and interfere with work performance, as well as the frequency and duration of the conduct.

A valid cause of action requires not only that the conduct had a detrimental effect on the plaintiff, but also that a reasonable person in the same protected class would have also been detrimentally affected in the same scenario. Therefore, an overly sensitive employee may not have a cause of action when the events at issue are evaluated under the objective “reasonable person” standard.

An employer will be subject to strict liability for the actions of an employee against another employee if the plaintiff can successfully demonstrate that the employer caused the hostile work environment or directed the co-worker to act in the discriminatory or harassing manner. However, even if the employer does not create the problem, the employer can still be liable under a negligence theory if the plaintiff succeeds in establishing that the employer knew, or should have known, of the harassment or discrimination and failed to properly address it. While employees often have a misinformed sense of what truly constitutes a legal claim of a “hostile work environment,” employers should by no means dismiss any complaint of improper workplace behavior before conducting and documenting an appropriate investigation of the matter.

Employers should have in place a written policy which sets forth the legal definition of unlawful discrimination and harassment, which will include, but not be limited to, the definition of a hostile work environment. The policy should also state the procedure for filing and investigating a complaint, and should require a written report of the investigation, as well as establish the procedure by which an employee may respond to or appeal the determination of the investigator. Employers should also have in place clear and objective disciplinary policies. All employees should be required to sign an acknowledgment indicating their receipt and review of these policies at the time of hire, as well as each time the policies are updated. Some employers, commendably, also review these and other key policies with employees annually and require annual sign-offs, regardless of whether the policies have been revised in the past year.

Even when employees raise issues which, at first blush, do not appear to constitute harassment or discrimination and the employee has not filed a formal complaint, employers are well-advised to investigate, address and document the matter. If the employer uncovers any facts that could indicate the possible presence of unlawful harassment or discrimination, he or she should remind the complaining employee of his or her right to file a formal complaint under the policy. If the employer has any question as to how to address a specific issue, legal counsel should be consulted.

As long as human beings remain human, bad behavior will appear in all areas of life. The workplace is no exception to, and in fact often proves, the Jerry Seinfeld maxim that people can, at times, be “the worst.” Employees should remember to keep these universal human experiences in perspective and recognize that not every unkind behavior is legally actionable. Employers, however, must always address these matters thoroughly and appropriately, for the sake of workplace harmony and to defend themselves in the event of a legal action.

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