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What is an unlawful hostile work environment?

Updated: Nov 8, 2022

Millions of workers often face unlawful hostile work environments without knowing how they can get help. Fortunately, the U.S. Equal Employment Opportunity Commission (EEOC) will investigate these claims in the litigation process, or they may be settled through EEOC mediation. Either way, an effective, hostile work environment attorney will be necessary for an employee victim to navigate the EEOC system.

Unlawful Hostile Work Environment Defined

An unlawful hostile work environment is not explicitly defined in Title VII of the Civil Rights Act of 1964, nor is harassment mentioned in the statute. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin, yet “harassment” is considered a form of employment discrimination. According to the EEOC, harassment is “unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history).” Additionally, harassment becomes unlawful when an employee must endure the offensive conduct as a condition of continued employment or conduct that is severe or pervasive enough that a reasonable person considers their workplace environment as intimidating, hostile, or abusive.

Subsequent case law has attempted to define “unlawful hostile work environment.” A few Supreme Court cases developed the “totality of circumstances” standard. While one incident may trigger a claim of harassment outright, this legal test allows for a series of inappropriate conducts to be combined even if each one by itself would not seem harmful. However, when considered all together, they can create an unlawful hostile work environment. An unlawful hostile work environment may include evidence of retaliation, offensive or abusive conduct, unnecessary touching, using demeaning language, or the employer failed to investigate claims of workplace harassment or discrimination.

In an unlawful hostile work environment situation, claims often include harassment, which involves racial, ethnic, or sexual slurs, as well as other actions by the employer or a coworker that create the hostile work environment. Harassment is one element of a hostile work environment, but an employer’s acts or inactions also cause other components regarding (1) employment decisions, (2) conducting prompt, fair, and thorough investigations into the alleged improper conduct; and (3) taking remedial steps to cure the issue. As a result, employees will not enjoy the same "terms, conditions, and privileges of employment" as their colleagues. Anti-discrimination laws also prohibit retaliation against an employee for reporting workplace harassment, which may involve termination of employment or more subtle acts such as not investigating claims. The employer’s acts or inactions will likely result in employer liability.

EEOC Mediation As An Alternative to Litigation

Despite many cases being filed with the EEOC, certain charges are often settled through EEOC mediation—which is a form of alternative dispute resolution (ADR)—that enables the parties (typically between the employer and the employee) to negotiate a settlement without going through often expensive and time-consuming investigative and litigation processes. EEOC mediation is available at the beginning of the administrative process as well as during the conciliation phase after a finding of discrimination has been issued. It is an informal yet confidential way to settle an unlawful hostile workplace environment claim. Litigation can get expensive and time consuming, so EEOC mediation can be an effective way to settle a Title VII case.

If you think you’ve been the victim of workplace harassment or been subject to an unlawful hostile work environment, a hostile work environment attorney can help you file your claim with the EEOC or participate in EEOC mediation with you.


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