Employee’s Rights Lawyer Answer: At Spitz, The Employee’s Law Firm, our attorneys get a lot of calls from potential new clients who tell us that they suffered from a hostile work environment. Although this may seem like a straightforward concept, it requires an in-depth review of the facts to determine whether the hostile work environment actually violated state or federal law, and if it did, the type of value that should be placed on this type of claim.
Avid readers of our employment law blog know that state and federal law prevent discrimination on the basis of race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, and disability. Eagle-eyed readers will have also seen that we have blogged on multiple occasions that proving a claim of retaliation is much easier than proving discrimination (Best Law Reads: Retaliation Is Still Easier To Prove Than Discrimination; What Are Examples Of Unlawful Retaliation At Work?;Why Retaliation Is The Easiest Employment Claim; Can I Be Fired For Bad Attendance After Reporting Discrimination Or Harassment?). So where does hostile work environment fit into that fold?
Do I have a claim for hostile work environment?
Employee’s Rights Lawyer Answer: Although Title VII of the Civil Rights Act of 1964 prohibits discrimination, it also prohibits hostile work environment when it is based on a protected class. This occurs when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted). (Best Law Read: What Is A Hostile Work Environment?; Can A Hostile Work Environment Be Based On Transgender Harassment?; What’s The Difference Between Quid Pro Quo And Hostile Work Environment Sexual Harassment?). Courts must look to the totality of the circumstances to determine whether a hostile work environment existed. Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998). If a reasonable person would find the conduct to be hostile or abusive, it will be found to be hostile. Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). “Appropriate factors for the court to consider when determining whether conduct is severe or pervasive enough to constitute a hostile work environment ‘include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (citations and internal quotation marks omitted). (Best Law Read: How Do I Prove My Hostile Work Environment Claim?; What Qualifies A Hostile Work Environment Under Title VII?).
Okay, so what does all that mean? It means that a court will need to look at the facts in a case-by-case basis to determine whether the conduct constitutes a hostile work environment or not. As this will require a keen eye to determine whether you were subject to a hostile work environment, it is best to contact an experienced attorney to determine whether you have a claim.
What is an example of a hostile work environment?
Top Workplace Harassment Attorney Answer: The recent case of Ford v. Jackson National Life Insurance Company, 45 F.4th 1202 (10th Cir. 2022), out of the United States Court of Appeals for the Tenth Circuit provides an example of when a work environment was deemed to be sufficiently severe and/or hostile enough to meet the burden of a hostile work environment claim.
Ford started working at Jackson as an internal wholesaler from 2006 and worked for Jackson until she quit in October 2010. Ford suffered from numerous forms of hostile work environment, starting in early 2008 when she was at an off-site work party where a regional director told her to “get on your knees” while he placed a vodka bottle in his pelvic region and thrusted his hips. During her employment, she applied and was passed over for promotions numerous times and made complaints that she had been discriminated and retaliated against. Ford also made multiple complaints to Jackson’s management and human resources that Jackson permitted “racial and sexual discussions without reprimand” and was creating an unfair work environment.
Due to Jackson’s failure to act on Ford’s complaints, she filed a charge of discrimination with the Equal Employment Opportunity Commission in December 2007 and provided specific allegations of hostile and discriminatory treatment such as coworkers making comments after Barack Obama was elected that “Watermelon is going to be on sale,” and that “Chevy Impalas will be discounted;” that Jackson also permitted male employees to show co-workers pornographic images and asked Ford her breast size without reprimand. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; Read This Before Filing An EEOC Charge).
Ford not only had her own word—Ford had witnesses and documents to boot. A previous supervisor provided testimony that he was ordered by a Vice President to give Ford a negative evaluation so that Jackson could build a case to terminate her employment. (Best Law Read: Can My Boss Be Fired For Lying About Me?; Yes, Employers And Their Attorneys Lie). What is more, this supervisor also testified that he heard management referring to Ford and another African American female as “Black bitches,” “Black Panthers,” and the “resident street walkers.” Maybe even more shockingly, after Ford made another failed application for a promotion, one of the decisionmakers sent an email stating, “I firmly believe that she would attempt to leverage that position into an opportunity to work against the company’s interest by furthering her complaint” – linking a declination to promote directly to her repeated protected complaints. (Best Law Read: Retaliation Is Still Easier To Prove Than Discrimination; Can My Boss Give Me Dangerous Assignments For Reporting Discrimination?).
On Ford’s last day of employment with Jackson, a co-worker defaced a football that stated “Black Rock” to replace the “R” with a “C,” and threw the football at Ford. Ford then emailed Jackson to advise she was resigning as of that date. (Best Law Read: What Does “Constructive Discharge” Mean?; How Many Insults Equals Constructive Discharge?).
If you are like me, you are disgusted by what you just read. Surely, this must constitute a hostile work environment, right? Well, at the conclusion of discovery, Jackson filed a motion for summary judgment, requesting the district court to throw out the case before it got to a jury. The district court agreed with Jackson and completely dismissed all of Ford’s claims against it.
Yes, you heard that right. Despite all of the awful facts I just told you, the district court still threw out the case. Luckily for Ford though, she had attorneys who did not stop there, and appealed the case to the Tenth Circuit Court of Appeals. That is why it is so critical to contact an experienced attorney to ensure that your rights are fully protected.
How do I prove that my work environment is hostile?
Best Employment Discrimination Lawyer Answer: In reviewing whether the conduct Ford faced was severe or pervasive, the Tenth Circuit held that an employee must prove that the conduct is both subjectively and objectively severe or pervasive. This requires the consideration of “such factors as the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012).
First, the Tenth Circuit made a critical distinction that required the reversal of the district court’s ruling: “Proof of either severity or pervasiveness can serve as an independent ground to sustain a hostile work environment claim.” Ford at *20 (quoting Throupe, 988 F.3d at 1243, 1252 (10th Cir. 2021) (emphasis in original)). You only need to prove one: severe or pervasive. As Ford presented evidence that she was repeatedly asked sexually explicit questions at work, she satisfied pervasiveness, which alone should have constituted a hostile work environment claim. Interestingly, even though Ford did progress through Jackson’s ranks during her tenure with the company, the United States Court of Appeals for the Tenth Circuit held “a victim’s ability to succeed at her job in the face of harassment should not then mean that she has forfeited her right to bring a claim for hostile work environment.” Ford, at *20.
The Tenth Circuit also held that Ford established a hostile work environment claim as to her race. In addition to the racial harassment Ford faced as discussed above, a co-worker also used the n-word once in conversation with Ford. The district court found this to be an isolated incident that did not lead to a hostile work environment claim. The Tenth Circuit disagreed—which you would think should be unsurprising—and held that as the n-word is a “powerfully charged racial term,” “Its use—even if done with benign intent and undirected at anyone specific—can contribute to a hostile work environment.” Ford, at *22 (quoting Lounds v. Lincare Inc., 812 F.3d 1208, 1230 (10th Cir. 2015)). Moreover, Ford had not just alleged one usage of the n-word—she presented evidence being called other racial slurs, and that Jackson had permitted employees to make racially charged comments and jokes. For these reasons, the Tenth Circuit held that she had met a hostile work environment claim based on race. (Best Law Read: Race Discrimination: Using The “N-Word,” Even Once, Can Create A Hostile Work Environment).
What should I do if I’m in a hostile work environment?
Employees’ Rights Law Firm Answer: If you are in a hostile work environment, the most important thing to do is protect yourself from any immediate danger. If you are not in an immediate risk of harm, the best thing to do is to get advice from the top employment attorneys as quickly as you can. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Sexual harassment and race discrimination are unlawful under Title VII of the Civil Rights Act of 1964 and similar state laws. If you feel that you are being sexually or racially harassed or are working in a sexually or racially charged or hostile working environment, you should not wait to call the right attorney to schedule a free and confidential consultation. At The Spitz Law Firm, you will meet with a harassment lawyer/hostile work environment attorney to find out what your legal rights are and the best way to protect them. It does not matter if you have been wrongfully fired or are still employed, there is no reason to wait to find out what your legal rights are and how to protect yourself from sexual harassment and gender discrimination. Call our top attorneys in Ohio, Michigan and North Carolina.
The employment law materials available at the top of this hostile work environment page and at this gender and race discrimination, wrongful termination, and sex harassment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “what should I do if my manager keeps making racist comments to me”, “I’m being sexually harassed by my supervisor” “my manager grabbed my ass”, “my boss called me the n-word,” “I got wrongfully fired today,” or “how do I sue for being forced to work in a hostile work environment”, your best course is to contact an Ohio sexual harassment attorney/hostile work environment lawyer to obtain advice with respect to sexual harassment/hostile work environment questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this employment law website are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.