What Constitutes a "Hostile Work Environment"

or "Hostile Workplace?"

Aaron Morris, Esq.

I get more and more calls every week from employees wanting to sue for being exposed to a "hostile work environment."  As I discuss the matter with them, it becomes clear that they have heard the buzz words "hostile work environment" or "hostile workplace" but have no understanding of the legal basis.  They believe that hostility in the workplace has somehow become illegal and actionable.  I even receive calls from employees who want to sue because they are being asked to work harder, and they feel that is hostile.

A Hostile Work Environment, to be actionable, must arise from illegal discrimination.

A hostile environment at work generally does not create a legal action unless it is a form of discrimination.  The concept of a "hostile work environment" first came from cases involving gender discrimination.  The classic example is that of a fire station which previously was devoid of women firefighters.  A woman finally breaks the gender barrier, but when she reports for work at the station she is greeted by nude centerfolds on the lockers and in the lunch room.  Pictures of nude women are not inherently discriminatory against women employees, but it is not hard to imagine that the woman firefighter might feel uncomfortable being surrounded by this objectification of women.  The courts struggled with this situation for some time, because the facts did not involve the classic form of discrimination, where the woman suffers some form of adverse job action or failure to promote.  The courts then came up with the reasonable idea that even in the absence of any objective discrimination, the very atmosphere of a workplace could be hostile to women and therefore discriminatory.  Thus, an older employee who never suffers adverse job action can still claim discrimination if the company permits constant jokes about age, or a minority can sue for discrimination if racist cartoons are posted.

A "hostile work environment" might also be actionable as a contract breach if it violates company policy or goes so far that it amounts to an unsafe working condition. 

When a wrongful termination case goes to trial, the jury is instructed on the law so that the jurors can decide the matter properly.  The following is the actual jury instruction, which is modified by the lawyers to fit the specific facts of the case.  Note that two of the elements require the insertion of the protected class, i.e., identifying whether the plaintiff is a woman, a minority, a foreign national, someone over 40, etc.  In other words, you cannot prevail on a claim for hostile work environment by going to court and proving you were subjected to hostility in the workplace that caused you emotional distress, UNLESS you can also show that hostility was caused by your membership in or association with a protected class.

Jury Instruction for Hostile Work Environment (CACI 2521A):

[Name of plaintiff] claims that [he/she] was subjected to harassment based on [his/her] [describe protected status, e.g, race, gender, or age] at [name of defendant], causing a hostile or abusive work environment. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was [an employee of/ a person providing services under a contract with] [name of defendant];

2. That [name of plaintiff] was subjected to unwanted harassing conduct because [he/she][was/was believed to be/was associated with a person who was/was associated with a person who was believed to be] [protected status];

3. That the harassing conduct was severe or pervasive;

4. That a reasonable [describe member of protected group, e.g., woman] in plaintiff's circumstances would have considered the work environment to be hostile or abusive;

5. That [name of plaintiff] considered the work environment to be hostile or abusive;

6. [Select applicable basis of defendant's liability:]

[That a supervisor engaged in the conduct;]

[That [name of defendant] [or [his/her/its] supervisors or agents] knew or should have known of the conduct and failed to take immediate and appropriate corrective action;]

7. That [name of plaintiff] was harmed; and

8. That the conduct was a substantial factor in causing plaintiff's harm.


Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California.  He can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.



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