I don’t think that a single TV show about lawyers exists that has not had at least one episode dedicated to sexual harassment. It’s such a juicy sounding topic that shows from Boston Legal to the Good Wife just can’t resist. The result is that most people are familiar with this terms “sexual harassment” and “hostile work environment.” However, as is often the case, these shows do a poor job of demonstrating how these claims play out in reality.
Both Colorado and Federal law recognize that an employee may bring a claim against an employer for a “hostile work environment.” A hostile work environment claim is a type of employment discrimination claim. An employee need not suffer a tangible adverse employment action, such as termination of employment or failure to get a promotion, in order to have a hostile work environment claim. However, if the employee does not suffer a tangible adverse employment action, the employer may have an affirmative defense to the claim if the employer can establish that it took reasonable care to prevent and promptly correct any work place harassment.
This begs the question: what is a hostile work environment? It is tempting to assume that a hostile work environment arises whenever an employee encounters an adversarial working environment. In reality, however, the definition is much more limited. A hostile work environment is a specific type of employment discrimination; which means, at its core, that it must result in discrimination. As described in more detail below, the discrimination must be due to the employee’s status as a member of a protected class. Sexual harassment is the common term used to describe a hostile work environment claim based on the protected class of sex or gender.
In order to establish a hostile work environment, the employee must prove that work place conduct was (i) unwelcome and offensive, (ii) sufficiently severe and pervasive as to alter the terms and conditions of employment, (iii) because of employee’s protected class status.
I. Unwelcome and Offensive.
The employee must establish that a reasonable person would perceive the behavior to be unwelcome and offensive. This is often the easiest element for the employee to establish. However, an employee may have difficulty if the employee previously participated in the conduct that the employee now claims was offensive. For example, an employee may claim that the work place has a hostile environment because several employees routinely tell offensive jokes. However, if the employee previously participated in this joke telling, it will be harder, though certainly not impossible, for the employee to establish that he or she finds this unwelcome and offensive.
II. Sufficiently Severe or Pervasive as to Alter the Terms and Conditions of Employment.
The courts have generally recognized a sliding scale when it comes to this element. The worse the alleged conduct is then the fewer times it needs to occur in order to be considered sufficiently severe or pervasive. Conversely, the less offensive the conduct is then the more frequently it must occur. Courts may also take other considerations into account such as the extent to which the conduct interferes with the employee’s work performance and the extent of psychological harm suffered by the employee.
III. Because of Protected Class Status.
This is the element of a hostile work environment claim that appears to be most misunderstood. The employee must establish that conduct was directed at the employee because of the employee’s protected class status. Protected classes under federal law include color, race, religion, sex, national origin, age, and disability. In addition, protected classes under Colorado law include sexual orientation, disability, race, creed, color, sex, religion, age, national origin, or ancestry. Hostile work environment can play in out in one of two ways. The first way is that the harassment itself can be about the employee’s protected class, i.e. male employees repeatedly making sexual comments to a female employee because those employees are female. The second way is that the employee can be a target for generic or general mistreatment because of employee’s protected class status.
For example, if a male supervisor treats female employees differently from their male counterparts, by threatening or intimidating behavior, and the conduct is severe and pervasive, it might constitute a discriminatory hostile work environment. Conversely, if a supervisor is rude or demanding but that “hostile” behavior does not have the effect of discriminating against a protected class, then that is not a hostile work environment for which the anti-discrimination laws provide protection. Similarly, an employee does not have a hostile work environment claim simply because the employee finds some of his or her co-workers to be behaving unprofessionally or inappropriately; as the supreme court stated “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and the occasional teasing” does not constitute a hostile work environment.
It is important to remember that while a hostile work environment encompasses sexual harassment, it also includes harassment based on the other protected classes as well. For example, an employee who is targeted for his race or religion may also bring hostile work environment claim.
Employees should be aware of the limited reach of hostile work environment claims. Often, employees assume that any adverse working conditions can lead to a hostile work environment claim. However, this is not the case. A claim only arises if the conduct is based on the employee’s protected class status.
For questions, please contact Roger Bock.