WHAT IS A HOSTILE WORK ENVIRONMENT?
Does your supervisor yell and curse at you at work. Have you asked yourself, is this a hostile working environment. To establish a claim of a hostile work environment, an employee must prove that "the workplace is saturated 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.
In order to prove a hostile environment claim, a person must show: (1) that she/he belongs to protected group; (2) that she/he has been subject to unwelcome harassment; (3) that the harassment was based on a protected characteristic; (4) that the harassment was sufficiently severe or pervasive to alter terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability.
The most misunderstood issue of a hostile work environment claim is that any harassment that is being claimed must be based on a protected characteristic. This means that all the yelling and cussing must be directed at you because of your age, race, sex, sexual orientation, gender or other protected class or in retaliation for reporting some type of discrimination or whistleblower activity.
What Is Objective Severity?
In evaluating the objective prong of severity, courts focus on four factors: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance. Courts do not require that a plaintiff demonstrate that each factor is present, but look at the “totality of the circumstances”, including the relative strength of each factor.
What Is Subjective Severity?
The subjective prong of “severity” is intertwined with the second element (“unwelcomeness”) of the hostile environment case. An individual need not show that his/her psychological well-being was affected in order to establish a claim.
Although subjective severity is rarely an issue in hostile environment cases, some employers have suggested that the use of racial slurs in popular music, and sometimes by plaintiffs or other African Americans themselves, is evidence that some notorious racial slurs are no longer subjectively severe. To date, this argument does not seem to have been accepted. See Rodgers v. Western-Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir. 1993) (“The fact that black employees also may have spoken the term does not mitigate the harm caused by [the supervisor’s] use of that epithet; a supervisor’s use of the term impacts the work environment far more severely than use by co-equals.”).
Back to all that yelling and cussing. If your supervisor is not directing it at you because of your age, race, sex, sexual orientation, gender or other protected class or in retaliation for reporting some type of discrimination or whistleblower activity, and is just a jerk, odds are it is not actionable as a hostile work environment. If you believe that you are a victim of a hostile work environment or other workplace discrimination, call Westberry & Connors, LLC. Our lawyers are Florida Board Certified Specialists in Labor and Employment Law and have the knowledge and skill to navigate all types of workplace discrimination issues. Call us today: Westberry & Connors, LLC. 4400 Bayou Blvd. Ste. 32A | Pensacola, Florida 32503 Phone: (850) 473-0401 | Fax: (850) 473-1388
Clayton M. Connors, B.C.S. Attorney at Law - Florida Board Certified Specialist in Labor & Employment Law ** Licensed in Florida and Louisiana