Identifying and Handling a Hostile Work Environment

Employee claims of “hostile work environments” continue to make news both in Maine and on a national level, putting potentially embarrassing and damaging workplace and employee interpersonal issues into the public eye. But when do workplace issues rise to a level where a lawsuit might ensue? What steps can you take to prevent these claims from arising? Here, we provide practical advice for how to identify and mitigate a hostile work environment.

What is a hostile work environment?

Not all workplace disputes will rise to the level of an actionable claim in an administrative or civil legal proceeding. Workplace harassment comes in various forms, one of which is broadly referred to as a “hostile work environment.” Despite its seemingly expansive name, a hostile work environment claim involves specific elements—namely, that the employee was subject to unwelcome harassment based on membership in a protected class (typically related to gender, race, age, or disability), the harassment was objectively and subjectively offensive, and the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. For the company itself to be liable, there must also be a sufficient basis for liability—for example, if the company owner knew that an employee was being exposed to harassing behavior by a co-worker and failed to take any action in response.

However, hostile work environment claims are especially challenging because there is no clear answer as to when harassment is severe enough to constitute a legal claim. Although courts have repeatedly stated that they do not want to assume the role of a human resources department, it remains a highly factual inquiry whether harassment rises to the level of creating a hostile work environment. Especially in recent years, courts seem reluctant to dismiss a claim or grant summary judgment without permitting an employee’s claim to be presented to a factfinder, and this abundance of caution is unlikely to change in light of recent politics and the #MeToo movement. Nonetheless, case law has indicated that certain circumstances tend to be strong evidence of a hostile work environment, including the use of racial slurs (even once) and when incidents involve physical actions or altercations. In addition, the frequency of harassing behavior is important; a court is unlikely to find that a single incident alone constitutes a hostile work environment unless it is particularly egregious.

What steps can I take to protect my organization?

One of an employer’s strongest defenses in a hostile work environment claim is the Faragher-Ellerth defense, which requires an employer to show that it reasonably tried to prevent and promptly correct the harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Accordingly, the following steps can not only help protect your organization from hostile work environment claims arising in the first place, but can also ensure a strong defense should a claim arise:

1. Update your anti-harassment policies. Review your employee handbook to ensure it includes policies prohibiting not only sexual harassment but also all other types of harassment based on traits protected under federal, state, and local law. Your policy should also include examples of what constitutes harassment, taking into account social media and other electronic methods of communications utilized in the workplace; the organization’s complaint procedure, explaining how and to whom employees should report harassment; and a review of the company’s anti-retaliation procedure so that employees understand they will not face negative consequences after reporting or participating in an investigation of an incident. State law may also require specific language or requirements to be included in any harassment policy, and employers should be mindful of all local regulations in the regions where they operate.
2. Teach and train. In Maine, employers with 15 or more employees are required by law to provide sexual harassment education and training for new employees (and additional training for supervisory and managerial employees) within one year of employment. Other states have similar obligations. Even if your organization is not subject to mandatory training, a voluntary training session is a great way to remind your employees of the company’s values, open-door policy, prohibition on harassment, and procedures for handling complaints. Training for supervisors and managers is especially important because a supervisor’s knowledge may ultimately be deemed to be the employer’s knowledge. Accordingly, it is critical that members of management understand what to do if they become aware of a complaint or incident.
3. Investigate and remediate. If a complaint of harassment is brought to the company’s attention, promptly and discreetly investigate the issue and assess the steps needed in response. As noted above, one element of an employer’s defense in a hostile work environment claim is taking corrective action against the offending employee and offering corrective measures to the employee who suffered the harassment. Although appropriate measures may differ depending on the particular workplace or the circumstances, the company should work to identify appropriate disciplinary action (if applicable) and reach an outcome that results in a positive work environment for those involved.
4. Create and maintain supporting documentation. When faced with a complaint or investigation, members of management or human resources should take notes on interviews with witnesses, document the basis for any disciplinary actions, and record the dates and times of important decisions, such as those involving adverse employment actions. Because complaints are often pursued months or years after an alleged incident, a quick follow-up email with a summary of a phone call can be invaluable for piecing together a timeline of events later.

If you have any questions about anti-harassment policies or identifying, preventing, or handling a hostile work environment claim, please contact Liz Johnston or any member of Verrill’s Employment and Labor Group.