Dealing With… Hostile Work Environment

Note, this article is part of our continuing series of articles titled “Dealing With….”.  This special series is designed to provide simple practical advice of immediate usefulness to federal employees (and even local and state employees to a certain degree) dealing with certain situations specifically indicated in the article.   

An Unpleasant Work Environment is not Unlawful

An unpleasant work environment is not the same as a hostile work environment (HWE) within the meaning and application of actionable discrimination law and concepts; while not desirable, an unpleasant work environment is not unlawful.  Employee and Labor Relations practitioners hear claims or concerns of “hostile work environment” with greater frequency these days.  Both managers and employees often throw out this term for anything they believe, or claim, creates a work environment they simply do not like or they perceive their employees may not like. For example, claims of hostile work environment are often raised in connection with workload, parking issues, employee on employee tensions, assignments of work, days off, hours of duty, geographic assignments, method and means and technology in performing work, etc…

Before going further, it is important to establish that employees are simply not guaranteed, or otherwise entitled to, a work environment they personally deem “pleasant.” It is a reasonably held position employees are required to adapt to their work environment, not the other way around. This is particularly true since every employee’s concept of a “pleasant work environment” is likely different. However, employees do have a right to a workplace free of discrimination.  Accordingly, for a claim of a hostile work environment to be actionable under EEOC laws and otherwise subject to the jurisdiction of the EEOC, the alleged form of harassment must be based on an employee’s membership in a protected group under Title VII, the Rehabilitation Act, or the Age Discrimination in Employment Act.  Furthermore, the “unwelcome conduct” must have been “severe and/or pervasive.”

SIDEBAR:  One of the biggest issues we encounter these days is worker on worker.  Simply put, agencies are forced to deal with employees whose personalities are deficient in some regard and subsequently, those deficient personalties affect coworkers or the workplace environment negatively.  Sometimes it’s a mental problem (really), other times employees bring their caustic political or life views into the workplace and affect other personnel.  Other times, employees simply have nasty attitudes they cannot control.

What is Unlawful? (it’s Complicated)

Upon reviewing all the facts, in most cases, we advise managers claims of hostile work environment are in fact not actionable claims.  This does not mean an employee cannot file a an EEO claim.  In fact, employees file some of the most absurd EEO claims and they must still be processed, no matter how hard everyone laughs at the claims along the way.

As previously stated, any federal employee can file an EEO complaint no matter how absurd the claims.  Still, law and agency regulation require processing of a complaint until such time proper dismissal, modification, investigation, or formal adjudication of the complaint is made.  While there are distinct stages at which a claim can be dismissed or otherwise modified, processes provide very wide latitude for an absurd claim to slither through the EEO processes, even to hearing.

For a hostile workplace place claim to be actionable, certain elements to the claim must exist aside form the standard requirement for any other claim.  These basic elements are:

  • You must be a member of a statutorily protected class.’
  • You must have been subject to verbal or physical harassment (conduct).
  • The harassment of which you are claiming was conducted on the basis of your membership in the protected class.
  • The harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment.” See, Gibson v. Department of Homeland Security, EEOC No. 0720060079 (EEOC OFO 2008); and, Humphrey v. U.S. Postal Service, EEOC No. 01965238 (EEOC 1998).

While seemingly simple, the analysis and application of the law can be complicated.  Everyone who makes contact with InformedFed feels as if they have been aggrieved.  However, feelings do not manifest into facts necessary to prove your case, which is what ultimately matters.  A hearing before an EEOC Administrative Law Judge (ALJ) is typically the final stop in any EEO case. Title 29 CFR 1604.11 (b) requires the ALJ to assess the case based on whether the conduct at issue constitutes discriminatory harassment given the “record as a whole” and “the totality of the circumstances” (this is why we place such great emphasis on assisting clients during the Report of Investigation stage (ROI) as the ROI is technically the “official case  record” the ALJ relies upon). It further notes the matter at issue must be viewed “on a case by case basis.”

Before going on, it is important to define two key terms concerning hostile work environment claims.  They are:

  • Severe: (of something bad or undesirable) very great; intense; strict or harsh.
  • Pervasive:(especially of an unwelcome influence or physical effect) spreading widely throughout an area or a group of people.

A significant part of an Administrative Law Judge’s analysis of a hostile work environment case will focus on the severity and pervasiveness of the alleged conduct in question.  To establish a hostile work environment, incidents alleged must have been “sufficiently severe and pervasive” to alter conditions of complainant’s employment and create an abusive working environment.”  See, Harris v. Forklift Systems, Inc., 93 FEOR 9003 , 510 U.S. 17 (U.S. 1993).  The severe and pervasive test is applied on a sliding scale such that the more sever the conduct, the less pervasive the requirement, and conversely. See, Ernest Hadley, Guide to Federal Sector EEO Law and Practice.

Next Steps

We provided basic information concerning a hostile work environment and hopefully some clarity.  If you legitimately believe you are subjected to a hostile work environment, it is imperative to seek qualified consultation from your union (if they are available and able to provide qualified guidance) or an InformedFed consultant.  To preserve the timeliness of your claim(s), you will need to make initial contact with an agency representative.  Then, as we have written before, it is critical to properly structure and control your claims and basis throughout the process to ensure they are accepted for investigation and then work with the EEO investigator assigned to complete the Report of Investigation (ROI) as the ROI is the official case record the EEOC will rely on in adjudicating your claims, as well as supplemental information gathered during the discovery process.

Summation

As we previously stated, agencies are encountering a high number of frivolous EEO claims and particularly hostile work environment claims.  All because you feel you have a legitimate claim, does not mean you will prevail.  If you believe you have a claim, we strongly recommend you obtain qualified consultation.  Qualified consultation does not mean you will receive an opinion you want to hear.  Instead, it should be an opinion you must hear, even of you do not like what is being said.

InformedFed provides no obligation initial consultations to assess whether our services would provide value to potential clients.  You can view our fee schedule by clicking here and submit a request for a no obligation initial consultation by clicking here.

 

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