Although many employees describe what they face at work as a “hostile work environment,” frequently what they are experiencing or observing is evidence of another type of workplace discrimination. It is therefore important for employees who believe they are experiencing discrimination in the workplace—and the lawyers who represent them—to look closely and carefully at all of the facts. Such careful examination and analysis are important for two reasons; first, because it is necessary to identify all of the possible types of discrimination that may be present in a workplace and, second, because other types of discrimination besides “hostile work environment” are often more easily proved.
A hostile work environment is one form of discriminatory harassment, whether based on sex, race, or other protected characteristics or in retaliation for protected activities. In early sexual harassment cases, the Supreme Court held that an employee can establish a violation of anti-discrimination law “by proving that discrimination based on sex has created a hostile or abusive work environment.” The Court went on to clarify that “not all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment” that would violate the law. Thus, the Court has required that sexual harassment must be unwelcome and “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” in order to be unlawful. Later, the Court clarified that the harassment must be both objectively and subjectively hostile or abusive and “actually altered the conditions of the victim’s employment,” a requirement reinforced in recent cases in which the courts ruled on whether the conduct resulted in tangible adverse employment actions.
The Supreme Court has indicated that all of the circumstances of the employee’s harassment must be carefully examined, including “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.” The discriminatory conduct may take the form of statements or actions, but the frequency or severity of the misconduct must have the result of altering the employee’s working conditions. If that is what is found, then a harassment case can be established. Of course, showing the denial of promotion is likely simpler than the kind of inquiry and burden of proof required to prove a hostile work environment.
Thus, it is important to keep in mind that what an employee considers to be harassment or interprets as a hostile work environment may be evidence of other types of discrimination. A supervisor’s derogatory or demeaning statements about an employee’s race, or national origin may not be just harassing, but also might reflect the supervisor’s views or a company policy that the employee is less qualified and thus should be paid less or not promoted. Similarly, statements and conduct that sexually objectifies or applies stereotypes to women might reflect more than sexual harassment. Such misconduct may also illustrate a perspective that women have, for example, limited roles to bring in business or work with customers and not to hold management or leadership positions. As such, those statements or conduct may provide the basis for a hiring, assignment, promotion, or pay claim. And when the statements or conduct reflect views or the treatment of persons beyond the particular employee, they may be evidence of a policy or practice of discrimination against a class of employees. Thus, it is critical that the subject matter of the harassing statements or conduct be scrutinized to identify any possible links to the employer’s decision-making and those decisions analyzed in light of the implications of the statements or conduct.