4 Factors Considered in the Creation of a Hostile Work Environment

posted by Daniel Stevens  |  Nov 7, 2019 1:52 PM [EST]  |  applies to California

What does it take to transform a simply annoying work environment into a sexually harassing hostile work environment? In order to answer this question, it is important to look at all of the circumstances together. There are four primary factors that are considered when looking at the totality of the circumstances. For your knowledge, these four factors are described in this article, although it is important to note that no single factor is required for a work environment to be deemed hostile. If you think you might have a claim for sex discrimination in the form of a hostile work environment, contact a discrimination attorney as soon as you can to figure out what you can do about your situation. 

  1. The frequency of discriminatory conduct
    Sometimes, work environments can be deemed hostile because of how pervasive the inappropriate behavior is. Incidents of abusive conduct have to be sufficiently concerted and continuous to be considered pervasive. An isolated inappropriate sexual remark made to a co-worker would not be enough to make a claim of sexual harassment, for example, as was supported by the case, Clark County School District v. Breeden. There are several examples of cases where the plaintiff has not succeeded because the inappropriate behavior was not considered pervasive. In one case, Brennan v. Townsend & O’Leary Enterprises, Inc., the plaintiff alleged that there were four incidents that occurred over four years involving three different employees, and two of the incidents were at Christmas parties that were off of work property. In this case, it was ruled that the evidence did not constitute a concerted pattern of harassment. On the other hand, in Hostetler v. Quality Dining, Inc., only three incidents were considered enough to create a hostile environment. However, in that case, all three incidents happened in one week and included a forced French kiss, a crass comment, and an attempt to unfasten the plaintiff’s bra. While frequency is an important factor to consider, sometimes a single incident is sufficient to establish a hostile environment claim. However, in those cases, the incident must be quite severe.
  2. The severity of discriminatory conduct
    Severity is one of the other four primary factors that must be considered in hostile environment claims. As mentioned, a single incident can show a hostile environment if it is very severe. For example, physical groping qualified in the case of Myers v. Trendwest Resorts. Physical assault or the threat of physical assault can also be sufficient in isolation, as seen in Hughes v. Pair. In cases like those, the employer can be held liable if their response does not quickly and effectively eliminate the problem (e.g. removing the harasser from the workplace). For example, a single incident of sexual assault followed by inaction on the part of the employer can mean trouble for that employer, as seen in Doe v. Capital Cities and Lockard v. Pizza Hut, Inc. This can be true even when the assaulter is not an employee. Employers can be held liable for their conduct following severe harassment by a third party, such as a client. This was the case in Little v. Windermere Relocation: an employee was drugged and raped by a client and when the employer found out, he cut her pay and told her to move on and clean out her desk after she protested the pay reduction. The plaintiff claimed her employer had made the work environment hostile with his reaction, and the Ninth Circuit agreed with the logic of her argument that the employer’s response following a single, severe incident can be grounds for a hostile work environment claim. In general, the more pervasive the conduct, the less severe it has to be, and the more severe the conduct, the less pervasive it has to be, to be considered a hostile environment. 
  3. Whether or not conduct is physically threatening or humiliating or a mere offensive utterance
    In claims of a hostile working environment, it can be helpful for a plaintiff to show that there was some sort of negative effect on their psychological well-being, which could be produced by a physical threat, for example. While this kind of evidence of psychological injury is relevant and helpful, it is not necessary for a plaintiff to demonstrate that they suffered a psychological injury as a result of the sexual harassment. This was upheld in Harris v. Forklift Systems, Inc.
  4. Whether or not conduct unreasonably interferes with an employee’s work performance
    Lastly, it is important to consider if the harasser’s abusive conduct was so severe or pervasive that it actually altered the work environment. In one case, Westendorf v. West Coast Contractors of Nevada, Inc., the plaintiff alleged a violation of Title VII based on her supervisor’s sexual remarks to her at work on four occasions over a three-month period. For example, he told her that she needed to clean a trailer in a French maid uniform and asked if women “got off” using a specific type of tampon. She was also asked by the supervisor and another co-worker if she was intimidated by another woman’s breast size, a woman they called “Double D.” The court decided that these remarks were not severe or pervasive enough to alter the plaintiff’s terms of employment under Title VII. A similar case came to the same conclusion but under California’s Fair Employment and Housing Act (FEHA). In this case, McCoy v. Pacific Maritime Association, the plaintiff’s coworkers made offensive and inappropriate remarks in her presence fewer than ten times across four months. These incidents included shouting and calling the plaintiff “stupid,” making crass comments about female employees’ buttocks, and making crude gestures towards an employee once her back was turned. The court decided that the comments, which were not generally directed at the plaintiff, were not so severe or pervasive that they changed the conditions of her employment.
    Every situation is different and has its own nuances. Sometimes, one court will disagree with another on the facts or legal standards to employ in a given case. For that reason, it is very important when considering litigation for sex discrimination to speak with an experienced employment attorney or consult with professional sexual harassment lawyer who can navigate the common pitfalls and obstacles posed by such cases and give you a better chance at getting justice. 

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