What Constitutes Illegal Hostile Workplace Conduct?

Know Your Rights: When jerky behavior escalates
to truly hostile harassment

Question: My workplace is a crazy hostile work environment. Can I sue my employer?

Answer: Probably not.

Question: Why??

Answer: Your employer is allowed to be hostile. They’re allowed to be jerks. They’re allowed to be nasty. General hostility, or hostility for no identifiable reason, is perfectly legal in the United States.

As a general rule, they’re allowed to treat you as badly as they want. It’s only illegal if they’re being hostile, nasty, discriminatory jerks because you’re a woman, or because you’re pregnant, or because you politely rebuffed your boss’ sexual overtures, or because you decline to laugh encouragingly at your colleagues’ stupid sexist jokes, etc. If these factors are present, then you can allege that it’s a legally impermissible hostile work environment.

Anti-discrimination and harassment laws protect you from being treated badly or differently in hiring/firing/layoff decisions, pay practices, promotional and job assignment decisions, training opportunities, etc., because of your actual or perceived inclusion in a protected class, based on characteristics such as sex, race, or religion.

Harassment Standards under Federal Law

Under federal law, “harassment” based on sex, pregnancy, race, religion, national origin, age or disability, is prohibited. Statistically, most “hostile work environment” claims are brought by women on the basis of “sex.”

Under many state and city anti-discrimination laws, other characteristics are protected, such as sexual orientation, gender identity, marital or parental status, domestic violence victim status, criminal record status, etc. Apart from these specific protected categories, your boss can treat you like dirt and get away clean with it––but unfortunately, there is still no federal or state law that outlaws plain old bullying, so long as it is not done on the basis of gender, pregnancy, race, ethnicity, sexual orientation, age (over 40), or physical or medical condition (including recently being out of work).


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What Workplaces are Excluded from Discrimination Laws?

Certain workplaces are excluded because of the size of the workforce. For example, under federal law, your employer must have 15 employees before you can bring a discrimination case based on sex, pregnancy, race, color, disability and religion,. For age discrimination cases, your company must have 20 employees, and in order to qualify for maternity leave under the FMLA, your employer must have 50 employees on payroll (and you must have worked there for a solid year before your baby is born).

Many state and city discrimination laws, however, require far fewer employees before discrimination coverage applies. In New York, for example, only 4 employees are required for the discrimination laws to apply.

Is Harassment Discrimination?

Most anti-discrimination laws do not explicitly prohibit “harassment” per se. Instead, the laws simply prohibit workplace discriminatory treatment in the “terms, conditions, or privileges of employment.” But courts have regularly interpreted these definitions to bar not only traditional discriminatory treatment, but also two forms of illegal sexual harassment.

As mentioned above, if your company has 15 or more employees you’re covered under federal law if you’re subjected to an illegal hostile work environment, but if your company is smaller, you may still be covered under your state or city’s anti-discrimination laws but each state is different with regard to protections against sexual harassment. Alabama law allows you to sue for sexual harassment based on a theory of invasion of privacy, for example, and Vermont law requires every employer to adopt a policy against sexual harassment, yet other states have no specific law prohibiting or punishing sexual harassment. New York City has one of the most liberal and comprehensive “Human Rights” laws in the country; so if you have to be sexually harassed, let it be in NYC, or San Francisco, or New Jersey. Check your state law here.

The Most Common Hostile Workplace Claims are Based Upon Sex

The hostile environment may consist of sexual harassment, like unwelcome jokes, or it may be predicated on providing sexual favors in exchange for better employment conditions (which is called quid pro quo sexual harassment. For more information on these two areas, please see What Constitutes Illegal Sexual Harassment?

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Deborah O’Rell, Client Advocate