Good News: Hostile Work Environment is Harder to Prove Than You Think

By Ann Boehm August 14, 2023

A “hostile work environment” as a form of discrimination has been prohibited since the 1980s.  The Equal Employment Commission’s guidance and regulations on what constitutes sexual harassment, from the 1980s through now, describe illegal harassment as conduct that creates an “intimidating, hostile, or offensive working environment.” 29 C.F.R. 1604.11(a)(3). The EEOC’s guidance on harassment based upon any of the protected statuses (race, color, religion, sex, national origin, age, disability, or genetic information) uses similar descriptive terms—to be unlawful, the conduct would be considered “intimidating, hostile, or abusive.” https://www.eeoc.gov/harassment

Although “intimidating,” “offensive,” and “abusive” are used along with “hostile” to describe illegal harassment, the phrase that has stuck in the lexicon as prohibited harassment is “hostile work environment.” Yes, folks, we talk about an “HWE,” not an “IWE” or “OWE” or “AWE.” Unfortunately, I think the word “hostile” lends itself to being misinterpreted by many, many employees.

The Merriam-Webster online dictionary defines “hostile” as “of or relating to an enemy; marked by malevolence; having or showing unfriendly feelings; openly opposed or resisting; not hospitable.” Employees focus on the word “hostile” and think any slight in the workplace is a hostile work environment.

Based upon the dictionary definition of “hostile,” that makes sense. But this definition is very different from what is considered a “hostile work environment” under the EEO laws.

EEO practitioners know that to establish a discriminatory “hostile work environment,” an employee first must show physical or verbal conduct. Second, that conduct must be unwelcome and based upon the employee’s protected status. Third, the conduct must be so severe or pervasive as to alter the terms, conditions, or privileges of employment.

Employees know that they are protected from a “hostile work environment” under the EEO laws, but they often stop with the word “hostile” and fail to understand the requirements of what is legally a “hostile work environment.” Being asked to do an assignment the employee does not like is not a “hostile work environment.” A supervisor failing to say good morning is not a “hostile work environment.” Being given a low performance rating based upon legitimate performance concerns is not a “hostile work environment.”

[Editor’s note: Hostile work environment will be covered along with numerous other EEO issues during EEOC Law Week Sept. 25-29. Register now.]

I could go on and on. The perception among too many employees is that any perceived wrong by a supervisor is a “hostile work environment.”

Don’t get me wrong. Illegal harassment still happens far too often, and it is not acceptable. I just feel that the frivolous or non-meritorious complaints get in the way of the legitimate ones.

Employees have the right to complain about perceived discrimination. But it is unfortunate that they do not understand what an EEO hostile work environment is. Would it be a better world if we used “offensive work environment” instead of “hostile?” Perhaps. We are stuck with “hostile,” though.

How do we fix this? First thing – educate. Training can help. If an employee starts the EEO process, EEO counselors can educate them on what must be proven in a hostile work environment case. Mediators, judges, and counsel involved in the EEO process can all educate too.

Education may not rid us of wrong-intentioned hostile work environment complaints, but it may help. For those complaints that are not resolved, agencies need to have the fortitude to litigate the hostile work environment cases and ensure the legal requirements of a discriminatory hostile work environment are properly analyzed. What an employee perceives is “hostile” is not necessarily illegal harassment.

As I learned from an EEOC judge years ago, employees prevail on EEO complaints at a pretty low rate. But in 100 percent of the cases, the employee is upset about something. We are stuck with the word “hostile.” But what legally constitutes a “hostile work environment” is more than just a supervisor showing unfriendly feelings. Agencies can prevail in those cases. And that’s Good News. Boehm@FELTG.com