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The Employer Handbook Blog
Hostile? Maybe. Discriminatory? Not So Fast.
Some employees make life miserable for their coworkers. They gossip, sabotage, and bully—but that doesn’t always add up to a viable lawsuit. In fact, a recent federal appellate decision reminds us that even the ugliest workplace conduct isn’t unlawful unless it crosses a very specific legal line.
TL;DR: Just because workplace behavior is mean, petty, or even downright nasty doesn’t mean it’s illegal. For a hostile work environment claim to stick, the conduct must be because of a protected characteristic—like race, sex, or disability—not just because someone’s unpopular, abrasive, or considered a “rat.”
The Facts: Two Officers, Zero Triable Claims
Two corrections officers alleged a racially hostile work environment. The evidence?
- Co-workers tampered with timecards and mailboxes.
- Derogatory poems were circulated.
- Someone cut a valve stem off one officer’s car.
- They were stalked, ignored for preferred assignments, and called “rats.”
Ugly? Sure. Illegal? Not so fast.
The Second Circuit affirmed summary judgment for the employer because—critically—none of the conduct was based on race. Instead, the co-workers resented the plaintiffs for cooperating with internal investigations. The court noted:
“None of the alleged harassment referred to either plaintiff’s race.”
“[T]he only evidence referencing any reason for the alleged abuse… tended to indicate that [they] were harassed because they were perceived to be disloyal.”
That’s not discrimination. That’s workplace conflict—and the kind that, while toxic, doesn’t violate federal law.
The Law: Discrimination Must Be Because Of a Protected Characteristic
To win a hostile work environment claim, a plaintiff must prove that:
- They were subject to unwelcome conduct,
- That was severe or pervasive,
- Because of a protected characteristic,
- And there’s a basis to hold the employer liable.
These plaintiffs might’ve checked boxes one and two, but they failed the third. The court wasn’t buying vague accusations or strained inferences:
“The evidence is consistent with the theory that they experienced ‘workplace bullying completely detached from any discriminatory motive.'”
“Anti-discrimination law does not make defendants liable for doing stupid or even wicked things; it makes them liable for discriminating.”
That’s the line employers should remember.
Takeaways for Employers
✅ Unprofessional conduct isn’t automatically illegal.
Even jerks are allowed to be jerks—as long as their behavior isn’t motivated by race, sex, religion, or another protected trait.
✅ Dislike isn’t discrimination—but retaliation might be.
Mistreatment for cooperating with HR or filing complaints may not be discriminatory—but it could still be illegal retaliation.
✅ You still need to act.
Just because behavior isn’t illegal doesn’t mean you ignore it. Employers should take all complaints seriously—investigate, document, and take steps reasonably designed to stop the behavior. Workplace dysfunction can poison morale and lead to other legal trouble.
Mean, messy, and miserable isn’t enough to prove discrimination. But it’s more than enough to demand action.