When is a hostile work environment not a hostile work environment?


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(Eric, have you been drinking Peach Schnapps again?)

No, my college August days are long behind me. And there’s an actual HR-compliance point to this post.

Last night, on my flight back from Phoenix where I was explaining how to avoid workplace investigation missteps to attendees at a national conference, I read this Seventh Circuit opinion about an employee who claimed that he was subjected to a hostile work environment based on his race.

The timing couldn’t have been better because we were just discussing situations in which an employee’s complaint about a hostile work environment, while taken seriously, may not amount to an actual hostile work environment. Here’s why:

A plaintiff alleging a hostile work environment must establish four elements: (1) the employee was subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by Title VII—here, race; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile or abusive working environment; and (4) there is a basis for employer liability.

So, when is a hostile work environment not a hostile work environment?

Supposedly, three different individuals created a hostile work environment for the plaintiff by directing profanity at him. One of them supposedly confronted the plaintiff and used the f-word several times, in contexts like “shut the f[] up.” Another called the plaintiff a “stupid dumb motherf[]” and told him he was going to “kick [his] ass.” The other individual used the f-word once.

Bad language, no doubt. Hostile? Sounds like it. But does any of this relate to the plaintiff’s race? I don’t think so. Indeed, the plaintiff acknowledged that one of these individuals was “equal opportunity” when it came to dishing out profanity. Another outburst was connected to a dangerous traffic situation for which the plaintiff was responsible. And the plaintiff offered no context for the final individual’s lone use of the f-word.

Although the court acknowledged that “the epithets may have made for a crude or unpleasant workplace,” it reaffirmed that “Title VII imposes no `general civility code.'”

Employer takeaway:

I often get calls from upset employees who claim to have been subjected to a hostile work environment. I don’t take these accusations too seriously because I know the difference between a ‘legal’ hostile work environment and a subjective one.

But, when you get these complaints at work, you should take them seriously even if they don’t appear to cross the line of what’s legal and what isn’t. Often, that distinction can become a slippery slope and it’s better that your business has the opportunity to address it and stop it before those claims even sniff the inside of a courtroom.

“Doing What’s Right – Not Just What’s Legal”
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