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Hostile Work Environment and Harassment: You Know it When You See it…Or Feel it….

Hostile work environment claims are not easy to define, which only makes our lives as employment lawyers harder.  I frequently get calls from employees with stories of abusive bosses engaging in boorish, petty and plain stupid behavior.   But more often than not, when the employee on the other end of the line has finished their tale of woe, my advice to them is, “I wish I could do more for you, but I can’t.”  This is because most hostility in the workplace is perfectly legal.  For those experiencing lawful harassment, your remedy as an employee is not to bring a lawsuit – you have the right to quit, and that’s what the law expects of you.  So why is it that certain forms of workplace hostility are illegal while others are not?

Let’s start with what does not create a hostile work environment: unfair treatment, even discriminatory treatment, which is not motivated by hatred of any of the classes of persons protected by Title VII (gender, race, national origin or religion), the Americans with Disabilities Act (disability), the Age Discrimination in Employment Act (age) or any other anti-discrimination statute.

So if your boss is screaming at you because you are friends with someone he doesn’t like, or because you don’t like his wife, or because you are happy and he is not, then you are stuck working for a jerk without any remedy.  However, if your boss is screaming at you – or committing any offensive, unwanted and professionally unnecessary act – and if his behavior is motivated by hatred towards your status as a member of a protected class, then you have remedies under the law.  And remember, gender-based sexual harassment is not the only form of actionable harassment – any harassment that is motivated by your status as a member of a recognized minority (age, disability, race, national origin, religion, or sexual orientation) is actionable under federal, New York State and/or New York City law.

Here’s where it gets more complicated –

If you have been harassed and didn’t find it to be particularly objectionable at the time, but the offensive behavior escalated to the point where you eventually grew offended, you may have trouble demonstrating a hostile work environment given your earlier lack of objection, particularly if you lack of offense registered in your actions or words.   According to the law’s standards for proving a hostile work environment, you must prove the subjective experience of offense.  In other words, you must show that you were actually offended, not simply that the behavior is objectively offensive.  So if it the behavior wasn’t subjectively offensive to you earlier, odds are you will have problems proving that similar behavior was subjectively offensive later down the line.  Put simply, you just won’t have any credibility since you already went along with similar behavior.

The best advice I can offer to anyone in this situation is to remain consistent about your reaction to harassing conduct, even if it is to agreeably go along with it, because changing your tune is fatal, more so than not objecting in the first place (which can be explained as being the product of fear).  More than any other type of discrimination claim, your own reaction to a hostile work environment claim can determine whether or not you sink or swim in future litigation.  So this gets to the most important question – given the complicated definition of actionable harassment, how do I know when I am being subjected to conduct that is illegal?  Good luck.  Even lawyers who specialize in this area of the law routinely take on hostile work environment cases only to lose them at trial having gambled that a hostile work environment existed when it didn’t.

I tell potential harassment clients the same thing when they call – if you are uncertain if you have been harassed, don’t over analyze your situation.  First, if trained lawyers are unable to pinpoint unlawful harassment, understand that you are going to need help identifying your rights.  Call a lawyer and keep an open mind because this area of the law is particular and highly fact-specific.  However, if you are truly being degraded for reasons which relate to your protected characteristics, you’ll know it in your guy even if you don’t recognize it.  This is because there is no mistaking the experience of the hatred which the anti-discrimination statutes seek to protect you from, and you will know it when it happens to you, even if your intellect is confused.  My advice is to rely on your intuition and not your intellect – leave the legal decisions to the lawyer.  Supreme Court Potter Stewart understood this idea and embraced it when deciding a First Amendment case involving pornography.  He wrote, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description “hard-core pornography”; and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it, and the motion picture involved in this case is not that.”

The worst harassment cases I have seen have involved employees who ignored their gut and tolerated horrifying conduct for far too long, only to have it explode in their face.  So if you see it, if you feel it….trust your instinct and quickly call a lawyer.  The quicker you respond, the more likely you are to prevail in your negotiation or lawsuit.  A quick response is more likely to catch your former opponent off guard and will communicate your seriousness of purpose.  Most importantly, promptly retaining a lawyer will give you a sense of control and peace of mind early in the game, a benefit which cannot be underestimated.  Tolerating discrimination is not sustainable – it will eat you alive, and your health is not worth sacrificing, particularly for an employer unwilling to take your side with so much on the line.


Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.

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