For a long time, our society has strived to protect the rights of all employees, especially those in minority and vulnerable groups. Nonetheless, workplace harassment and hostile work environment discrimination still exist and occur even today.
What Constitutes a Hostile Work Environment?
The phrase hostile work environment is a legal term that refers to unwelcome discriminatory harassment in the workplace. A hostile work environment occurs when the workplace is permeated with discriminatory and offensive comments and actions that alter the conditions of an employee’s work environment.
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In New York, illegal harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy, gender identity, and sexual harassment), national origin, age, disability, genetic information, sexual orientation, alienage or citizenship status, marital status/partnership status, caregiver status, and status as a victim of domestic violence, stalking, and sex offenses. Harassment becomes unlawful where it creates a work environment that a reasonable person would consider intimidating, hostile, or abusive. It is also illegal to harass an employee in retaliation for complaining of, or objecting to, unlawful discrimination.
According to The Equal Employment Opportunity Commission (EEOC), “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people. Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.”
How to Prove a Hostile Work Environment. What Behaviors are Considered Criteria for a Hostile Work Environment?
In New York, to be deemed an unlawful hostile work environment, the following must be satisfied:
The harassment is discriminatory on the basis of race, color, religion, sex, pregnancy, gender identity, national origin, age, disability, genetic information, sexual orientation, alienage or citizenship status, marital status/partnership status, caregiver status, or status as a victim of domestic violence, stalking, and sex offenses;
The behavior or conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people, not to just the person making the complaint; and
a) The harasser is in a supervisory position over the victim; or
b) The employer had knowledge of the harassment and failed to take any action to put an end to it.
It is important to understand that:
The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee;
The victim does not have to be the person harassed but can be anyone affected by the offensive conduct; and
Unlawful harassment may occur without economic injury to, or discharge of, the victim.
Hostile Work Environment Examples
Using offensive language (such as epithets, gross generalization, bigoted jokes, offensive nicknames) towards a coworker or employee;
Regular comments about the person appearance in a sexual or derogatory way;
Touching a person without permission;
Mocking people for their physical or intellectual disabilities;
Physical bulling or threats of physical violence due to a protected trait listed above;
Displaying racist or sexually inappropriate pictures; and
Demanding sex in exchange for a promotion or other benefits.
Social media posts can also create a hostile work environment. If someone posts inappropriate photos of a colleague and/or offensive remarks about a coworker to his/her Facebook page, this can contribute to a hostile work environment.
Workplace Bullying Laws
There is currently no law in New York State that prohibits general bullying in the workplace – bullying that is not based on a protected trait. While the law prohibits discriminatory harassment (hostile work environment), the law does not create a general civility code for the workplace.
How to Prevent a Hostile Work Environment and What you Should do if you are Subjected to a Hostile Work Environment
If you believe that you are being subjected to a hostile work environment, your first step should always be to raise the issue directly with your employer. We always recommend taking the following steps:
Tell the harasser that his/her behavior is offensive to you based on the protected trait at issue and politely ask the person to stop. It is recommended to document this request, as it can later be used to prove that you asked the harasser to stop his/her discriminatory behavior. Sending an email is probably the best way to tell the harasser that his/her behavior is offensive and unwanted. In most cases, the employee will stop the behavior since he/she may not have realized the degree to which you found the actions offensive.
Keep a log and document everything that contributes to the hostile work environment. Log all the comments and actions, include date, time, and circumstances.
Photograph any discriminatory images, displays, or cartoons that indicate a possible hostile work environment.
Keep copies of offending communications, such as emails, text messages, voicemail messages, notes, and gifts.
Research your employer’s complaint procedure and complain about the hostile work environment pursuant to that procedure. You have to give your employer a chance to fix the situation and put an end to the discriminatory harassment. Make sure you follow your employer’s complaint procedure, if there is one, and report the harassment to the correct person. It is always best to put your complaint in writing. If you’ve only complained verbally, make sure you follow up in writing confirming the fact that you complained and reiterating the subject of that verbal complaint. Furthermore, provide the person to whom you’re complaining with copies of all the evidence you’ve accumulated. Remember, the employer doesn’t have to fire the person harassing you or inform you of the results of any investigation. They only have to make the discriminatory harassment stop.
Be able to prove that management was aware of the harassment, or that they should have been aware by documenting dates, times, places and other details of any meetings or discussions at which you reported the situation to the appropriate people.
Contact other witnesses and take statements.
Keep records of all mental health treatment that you received as a result of the hostile work environment.
Make sure to preserve any evidence you have. Keep multiple hardcopies in different places in case you lose one. Also, keep an electronic copy safe in a backed up file.
Look at things that have the potential to foster harassing and hostile behaviors. Can you remove them? Modify or reduce them? Is there something new that can be introduced to remedy the situation early? You want to curb hostile work environments before they happen, so you really need to think about what you can do to help make it stop.
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Contact an attorney to learn all of your options and discuss the best course of action to take.
Remember that it is also illegal to take any retaliatory action against an employee for complaining about discriminatory harassment and/or a hostile work environment.
Can I Sue my Employer for Creating a Hostile Work Environment?
Yes, under federal law, you must be able to show that the harassment was based on the victim’s race, color, national origin, gender, pregnancy, religion, disability, age, and genetic information. New York State law also protects against discriminatory harassment based on additional traits, such as gender identity, sexual orientation, alienage or citizenship status, marital status/partnership status, caregiver status, or status as a victim of domestic violence, stalking, and sex offenses. If you are thinking about bringing a hostile work environment lawsuit against your employer, it is best to seek the assistance of an experienced workplace attorney.
Are you experiencing or witnessing discriminatory harassment and/or a hostile work environment in NYC? The Law Offices of Yuriy Moshes, P.C. represents victims of hostile work environments in the greater New York City area including all of the boroughs of New York City (Manhattan, Brooklyn, Queens, the Bronx and Staten Island) as well as Northern New Jersey, upstate New York, and Long Island. Time is of the essence.