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.
- 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. - 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. - 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. - 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, who can navigate the common pitfalls and obstacles posed by such cases and give you a better chance at getting justice.
- Drug testing in some cases
Job applicants can be drug tested once they have received conditional offers, as long as they are all drug tested and it is not an issue of discrimination. For instance, an employer who only obliges African American applicants to take drug tests as a condition of employment would be in blatant violation of federal and state discrimination laws. For most jobs, random drug testing of current employees is typically considered unreasonable. Exceptions, of course, do exist and include employees who work in safety or security sensitive roles. Employers who have reasonable suspicions about illicit drug use can do a drug test; it is random ones that are unannounced and not previously consented to that are most problematic. Employers should have written policies about drug testing, which can be important to set employee expectations (recall that it is illegal for employers to violate their employees’ reasonable expectations of privacy). - The imposition of medical exams or questions about medical information
Employers are not allowed to discriminate based on medical condition or disability status. To this end, they generally cannot oblige employees to disclose the medications they are taking or to provide information about the internal state of their body. Generally speaking, employers cannot ask job applicants to reveal confidential medical information or to submit to medical examinations. However, once a job offer is made, an employer can make it conditional upon you passing a job-related medical examination (e.g. a fitness test for a firefighter that assesses specifically job-related duties). Of course, that means all entering employees in that kind of position must be required to do the same. One person cannot be singled out due to the employer’s belief that they have a disability, as that would be illegal discrimination. Additionally, even if a disability is revealed during such a medical exam, if the individual can perform the essential functions of the job with a reasonable accommodation (one that does not pose an undue hardship on the employer) then the employer cannot refuse to hire them.
Moreover, medical records that an employer might have about employees for health insurance claims, workers’ compensation claims, or disability or medical leaves must be kept confidential. Your boss cannot go around telling all your coworkers that you have diabetes, for instance, if you only told your boss because you needed to take leave because of it and do not want that information shared with others. It is best for employers to keep medical documents separate from personnel files and kept in a secure location that only designated staff members can access. - Invasions of privacy related to social media
With the pervasiveness of social media in today’s world, it is likely no surprise that privacy concerns can be a huge issue for people who use it. Most employees do not want their bosses snooping on their social media accounts. Where else would they complain about their micromanaging and silly habits? To help address this issue, California enacted Labor Code Section 980 in 2013. Generally, it limits employers from accessing employee social media. The law bars employers from asking or demanding that an employee or job applicant do a few different things. For example, your boss cannot request or order that you tell them your username or password so they can access your personal social media. Your boss also cannot require you to access your social media accounts in their presence (they don’t need to see that you complained about them twice last week!). Employers also cannot retaliate against an employee for refusing access to personal social media. However, employees who do not want their employers looking at their information online should ensure that their privacy settings hide their information from people who they have not explicitly granted access to (e.g. Facebook friends).
A related issue that comes up in the context of discrimination is employers using social media and having access to information that they are not legally permitted to use in the hiring process, like age/race/sex. Wittingly or unwittingly, people who make hiring decisions may discriminate against people based on membership in protected categories if they look up the social media profiles of applicants. Even if only your profile picture is available to the public, that can still tell employers your approximate age, gender, and race, which could bias their decisions. To avoid this problem, employers should employ a hiring system that erases the problem. For instance, a third party could be asked to look up the social media profiles of applicants and scrub all the details about things employers are not allowed to ask of applicants and then give only the relevant details to the person or people making hiring decisions.
Do any of these situations sound familiar to you? If so, you may be a victim of a workplace privacy violation. If you think your reasonable expectations of privacy in the workplace have been violated or you have been wronged at work in some other way (e.g. discriminated against, sexually harassed, or retaliated against for protected activity), you may want to contact a wrongful termination attorney to see what you might be able to do about your situation.