hostile work environment

“Harassment” and “Hostile Work Environment” is not Illegal… Unless it is Based on Discrimination. Here’s What You Need to Know.

An unpleasant work environment, a rude coworker, unequal training, unfair work assignments, unwarranted discipline, demeaning comments, each alone or all together do not necessarily support a claim of unlawful harassment, or more specifically a claim for an illegal hostile work environment. That is because one essential element for such a claim is absent.

A Hostile Work Environment Claim Must Be Based on Discrimination

Even if the conditions or behaviors seem unbearable, it is only an illegal hostile environment if the problematic behavior is based on illegal discrimination. In other words, the reason or the motivation for hostile acts or conditions against an employee must be because of his/her membership in one of the classes protected by federal, state, or local law. Protected classes generally include gender (including pregnancy), race, color, national origin or ethnicity, religion, disability, age, marital status, sexual orientation, genetic information. For example, a boss who routinely ridicules employees regardless of their gender, race, religion, or inclusion in any other protected class may need to be fired, but the ridiculed employees have no legal claim against the boss or the company. That is, an employee does not have a legal claim if the supervisor treats all or most people in a bad way. Indeed, even a supervisor who treats only one employee poorly is not violating the law if the bad treatment is based on a personality conflict. In contrast, the boss who routinely ridicules only female employees while befriending male employees is exposing the company to potential claims of gender discrimination, and more particularly, a hostile work environment (a subset of discrimination).

The point is that the an employee may only assert a legal claim against an employer when the employee is able to show that the employer’s (supervisor’s) harassment (which causes a hostile work environment) is motivated by that employer’s (supervisor’s) discrimination against the employee because of her/his [legally protected class] such as gender, race, sexual orientation, age, pregnancy, religion, disability, marital status, national origin or ethnicity.

How to Prove Illegal Discrimination that Causes a Hostile Work Environment

Workplace discrimination comes in many different forms, but generally it means that an employee or a job applicant is treated differently or less favorably because of their sex, gender identity, sexual orientation or other protected classification. Sometimes workers experience discrimination because of their gender and something else, like their race or ethnicity. For example, a woman of color may experience discrimination in the workplace differently from a white female co-worker. She may be harassed, paid less, evaluated more harshly, or passed over for promotion because of the combination of her gender and her race.

Some examples of treatment that could be illegal discrimination include:

  • not being hired, or being given a lower-paying position because of your gender identity or sexual orientation (for example, when an employer refuses to hire women, or only hires women for certain jobs)
  • being held to different or higher standards, or being evaluated more harshly, because of your gender identity, or because you don’t act or present yourself in a way that conforms to traditional ideas of femininity or masculinity
  • For example, if a worker who identifies as a woman receives a negative performance evaluation that criticizes her for being too “aggressive” (while men who behave the same way are praised for showing “leadership”), or if she wears her hair short and is told she needs to be more “presentable,” she may be experiencing discrimination based on gender stereotypes, which is a form of gender discrimination.
  • being paid less than a person of a different race who is similarly or less qualified than you, or who has similar (or fewer) job duties than you
  • being denied a promotion, pay raise, or training opportunity that is given to people of another nationality or ethnicity who are equally or less qualified or eligible as you
  • being written up or disciplined for something that other employees of a different gender do all the time but never get punished for
  • being insulted, called derogatory names or slurs because of your age, or hearing hostile remarks about people of a certain age
  • being intentionally or repeatedly called by a name or referred to as a different gender that you don’t identify with – such as when a transgender man is called by his dead name, or referred to as “Miss”
  • being subject to unwelcome sexual advances, requests for sexual favors, or other verbal or physical harassment of a sexual nature (If you think you’ve experienced sexual or gender-based harassment)
  • being rejected for a job, forced out on leave, or given fewer assignments because you’re pregnant

Not all gender discrimination is intentional or explicit. It could still count as discrimination if your employer does something that ends up excluding or harming workers of a particular gender identity without intending to. Oftentimes, a certain practice or policy — say, a hiring test or requirement — does not say anything, for example, about gender, and may not have been put in place for the purpose of keeping women, trans, or nonbinary people out of certain jobs, but ends up having that effect. This kind of practice or policy could still be considered discriminatory, and if you’ve been denied a job-related opportunity, paid less, or were fired as a result of it, you might have a discrimination claim.

If you believe that you may have a claim for unlawful discrimination do not hesitate to contact us at Burnham Douglass law group. Our practice is dedicated to employment law. We believe people deserve a fair and safe place to work.

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