Understanding “Hostile” Work Environments—When Work Feels Like Reality TV

Last week, I spoke to two journalists about two very different fact patterns—each asked me if and/or how the conduct complained of became a “hostile” work environment.

First, I spoke to my friend Karla Miller, The Washington Post’s workplace columnist. She explained that a writer sought her advice after walking in on two colleagues doing the deed in a supply closet at work. During work hours.

She explained that the colleagues work on separate teams but asked Karla if she should tattle to the wife (who she had met twice) of one colleague.

Karla advised her as my mother would - keep your mouth shut!

Then, Karla asked me: could the coworkers’ sexual relationship create a hostile work environment?

Not based on these facts, I told her. You see, a “hostile work environment” does not mean people are rude, inappropriate or unprofessional at work. It does not mean that an employee is upset at work because their manager is mean to them.

Rather, and as I told Karla, the term has a specific legal meaning . There is a difference between unprofessional action … and unlawful action.

So, What Qualifies As a “Hostile” Work Environment?

It is important to understand the kind of conduct, behavior, and comments that can lead to a hostile workplace environment. Sexually charged comments, banter, or innuendo made by other employees, supervisors, or third parties to an employee may subject an employer to liability under federal law if it rises to the level of sexual harassment by creating a hostile work environment.

But, first, the comments or conduct must be based on a protected characteristic, such as gender—the harassment must be because of the harassee’s sex (or race, disability, age, etc).

To qualify as a hostile work environment, behavior has to be “severe or pervasive” enough to interfere with an affected employee’s ability to perform their job — and it has to be both subjectively (in the harassee’s or witness’s eyes) and objectively (to a reasonable person) hostile or offensive.

Here, the conduct in question did not seem to interfere the writer’s ability to do her job. She felt uncomfortable keeping a secret, but discomfort is not the same thing as interference with a person’s ability to do their job.

It all depends on the facts.

Can A Hostile Work Environment Arise OUTSIDE of The Workplace?

It sure can. At least according to the Ninth Circuit Court of Appeals in this case.

In this case, a security guard manager created an Instagram account demeaning and debasing women, including, specifically, the plaintiff, a psychologist at the prison.

For five months, the manager posted, sometimes 4-5 times per day, and other prison employees liked or commented on his posts, including one in which he advised that prison officers would “gang bang” the plaintiff.

Photo by Sara Kurfeß on Unsplash

Bloomberg Law had questions. Did I think that the ruling built on the Equal Employment Opportunity Commission’s recent harassment guidance, which explains that employers can be liable for off-duty conduct that occurs online or on social media if it affects someone’s work environment?

Why, yes, I did. AND, I noted that the ruling extended workplace protections for harassment victims by ensuring that employees are afforded the same treatment regardless of where harassment occurs.

For instance, a derogatory remark or conduct can give rise to a claim of sexual harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”) if the conduct or comment is sufficiently severe, even though such claims typically require a pattern of behavior that creates a hostile work environment.

After five months of this posting and management’s lackluster response (they thought, at first, it was funny), plaintiff left her job and sued. The Ninth Circuit aptly noted that social media is everywhere, online forever, and the guard’s posts could be viewable in perpetuity.

And, I told Bloomberg here, I think this is the tip of the iceberg of online harassment claims—we are going to see more of these issues crop up, especially in an election year because the country’s polarized political climate often fuels workers’ emotional and contentious ideological expressions on social media.

What Should Employers Do?

If your employee handbook (you have one, right?!?) does not include social media, it’s time for an update.

The EEOC has said it and now the Ninth Circuit has confirmed: conduct within a virtual work environment, including on social media, can create contribute to a hostile work environment under certain circumstances.