Hostile Work Environment
Federal and Tennessee law prohibit workplace harassment based on an employee’s protected characteristic. The following are protected characteristics for workers in Tennessee:
- Sex (including pregnancy, sexual orientation, and gender identity)
- National origin
- Age (40 and up)
- Genetic information
Crucially, to constitute a hostile work environment in the legal sense, the harassment must be based on one of the foregoing protected characteristics. This is the #1 misconception about hostile work environment claims.
Workplace misconduct by a boss or coworker that is rude, inappropriate, abrasive, or even bullying is generally legal.
The legal definition of a hostile work environment claim is when a work environment is “permeated with discriminatory intimidation, ridicule, or insult sufficiently severe or pervasive to alter the terms or conditions of your employment.”
To establish a prima facie case of a hostile work environment claim, a plaintiff must show:
- he or she is a member of a protected class;
- that the harassment was unwelcome;
- the harassment was based on a protected characteristic;
- the harassment unreasonably interfered with the employee’s work performance by creating a hostile, offensive, or intimidating work environment; and
- employer liability.
The harassment must be severe or pervasive enough to be considered abusive.
- What is Pervasive?
- Frequent and recurring harassment over a long period of time
- What is NOT Pervasive?
- Isolated incidents or stray remarks
- What is Severe?
- Physical threats, unwanted touching, or using highly offensive slurs or insults based on a protected class
- Physically humiliating, demeaning, ridiculing actions
- Disrupting your ability to work
- Interfering with your career progress, e.g., denied a promotion
- What is NOT Severe?
- Simple teasing, offhand comments, talking loudly, chewing loudly or burping – these are rude and obnoxious, but generally legal
In general, employers are responsible for what happens to their employees. But it does matter who at work is harassing you.
- Your Supervisor: The company is automatically held responsible for the actions of the supervisor.
- Co-worker: A court asks whether or not it was reasonable to believe that the company knew or should have known about the harassment and if it failed to take corrective action.
Example 1: For over 10 years the plaintiff was exposed to racial slurs, demeaning jokes and inflammatory graffiti, experienced isolation and segregation and disparate discipline and additional duties. YES – This plaintiff had a viable claim for hostile work environment.
Example 2: Three sexually offensive remarks made by the plaintiff's supervisor at the beginning and end of a six-month period. NO – This plaintiff did not have a viable claim.Next Steps Based on Your Employment Status
- You Were Terminated
Contact an employer lawyer right away to determine if you have a viable hostile work environment claim.
- You are Still Employed
The truth is that employment laws are ill-designed to prevent ongoing misconduct at work. Injecting a lawyer into a precarious work situation usually just paints a target on your back. But you should put the company on notice of the harassment with a respectful complaint. The complaint should be:
- in writing (work email is fine but immediately print out a copy for your records);
- helpful and professional - offer solutions and do not threaten or use legal buzzwords;
- as specific and brief as possible;
- carefully worded and not overly aggressive - e.g., "this is unlawful" (which is aggressive and conclusory) versus "I think I'm being treated differently because of [age, disability, sex, etc.]"; and
- sent to the right person in accordance with the company's policy or procedure (probably HR).
Lastly, if you are terminated after complaining, immediately call a Nashville employment lawyer.
- You Quit
If you quit your job, you must prove Constructive Discharge, which means your former employer deliberately created working conditions so intolerable that you were forced to resign. This is a difficult standard to meet. Put differently, your former employer fired you by replacing its will for your own. This often requires a showing of extreme harassment such as documented physical touching or severe threats and/or slurs and insults.
If you cannot show Constructive Discharge, then you may be denied economic damages (back pay and front pay), which will impact the value of your case. But if your situation is extraordinary, you may be able to show constructive discharge, and you should call our office.