I get more and more calls
every week from employees wanting to sue for being
exposed to a "hostile work environment." As I
discuss the matter with them, it becomes clear that
they have heard the buzz words "hostile work
environment" or "hostile workplace" but have no
understanding of the legal basis. They believe that hostility in
the workplace has somehow become illegal and
actionable. I even receive calls from
employees who want to sue because they are being
asked to work harder, and they feel that is
hostile.
A Hostile Work Environment, to be actionable, must arise from illegal discrimination.
A hostile environment at
work generally does not create a legal action
unless it is a form of discrimination. The concept of a "hostile
work environment" first came from cases involving
gender discrimination. The classic example is
that of a fire station which previously was devoid
of women firefighters. A woman finally breaks
the gender barrier, but when she reports for work
at the station she is greeted by nude centerfolds
on the lockers and in the lunch room.
Pictures of nude women are not inherently
discriminatory against women employees, but it is
not hard to imagine that the woman firefighter
might feel uncomfortable being surrounded by this
objectification of women. The courts
struggled with this situation for some time,
because the facts did not involve the classic form
of discrimination, where the woman suffers some
form of adverse job action or failure to promote.
The courts then came up with the reasonable idea
that even in the absence of any objective
discrimination, the very atmosphere of a workplace
could be hostile to women and therefore
discriminatory. Thus, an older employee who
never suffers adverse job action can still claim
discrimination if the company permits constant
jokes about age, or a minority can sue for
discrimination if racist cartoons are posted.
A "hostile work
environment" might also be actionable as a contract
breach if it violates company policy or goes so far
that it amounts to an unsafe working condition.
When a wrongful
termination case goes to trial, the jury is
instructed on the law so that the jurors can decide
the matter properly. The following is the
actual jury instruction, which is modified by the
lawyers to fit the specific facts of the case.
Note that two of the elements require the insertion
of the protected class, i.e., identifying
whether the plaintiff is a woman, a minority, a
foreign national, someone over 40, etc. In
other words, you cannot prevail on a claim for
hostile work environment by going to court and
proving you were subjected to hostility in the
workplace that caused you emotional distress,
UNLESS you can also show that hostility was caused
by your membership in or association with a
protected class.
Jury Instruction for
Hostile Work Environment (CACI 2521A):
[Name of
plaintiff] claims that [he/she] was subjected to
harassment based on [his/her] [describe protected
status, e.g, race, gender, or age] at [name of
defendant], causing a hostile or abusive work
environment. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name
of plaintiff] was [an employee of/ a person
providing services under a contract with] [name of
defendant];
2. That [name
of plaintiff] was subjected to unwanted harassing
conduct because [he/she][was/was believed to be/was
associated with a person who was/was associated
with a person who was believed to be] [protected
status];
3. That the
harassing conduct was severe or pervasive;
4. That a
reasonable [describe member of protected group,
e.g., woman] in plaintiff's
circumstances would have considered the work
environment to be hostile or abusive;
5. That [name
of plaintiff] considered the work environment to be
hostile or abusive;
6. [Select
applicable basis of defendant's liability:]
[That a
supervisor engaged in the conduct;]
[That [name
of defendant] [or [his/her/its] supervisors or
agents] knew or should have known of the conduct
and failed to take immediate and appropriate
corrective action;]
7. That [name
of plaintiff] was harmed; and
8. That the conduct was a
substantial factor in causing plaintiff's
harm.
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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California.
He can be reached at (714) 954-0700, or by email. The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business
practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.
