Standards for a Hostile Work Environment Claim

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What Is A Hostile Work Environment?

I often caution employers not to worry too much about the law because their workplace standards should be well shy of what is illegal.  For example, an employer should have a policy against aggression towards other employees even though claims like assault and murder require more than aggression.  I recommend this because managing activity that is borderline illegal is expensive.  No employer wants to have an employee who is so troublesome they are employed the day they break a law and because litigating facts about whether someone fell just short or just over the line of illegality is expensive.

This is particularly true of hostile work environment claims. In addition to the risks and expenses described above, employers should have a very strict prohibition against hostile workplace actions because the line of illegality moves a lot.  Recently, the Texas appeals court moved the standard again and many states have done the same.  For an explanation of the technicalities from the courtroom, this video is a great summary:

In Texas, an illegal hostile workplace is evidenced by a physically threatening jobsite where contact is severe or pervasive. There is no longer a requirement that the hostilities happen persistently and it is possible that one instance of hostile behavior by an employee could make the employer liable.  Employers have an obligation to investigate the workplace as soon as they have knowledge of a possible hostile work environment.

I recommend that employers modify their policies and handbooks to be even more conservative than the current Texas law.  For example, I suggest requiring that ANY employee who legitimately perceives a hostile work environment, experiences a threat, or believes someone else is feeling threatened be required to report their observations to management.  I also suggest policies require progressive discipline for any employee who makes any veiled, outward, verbal, or physical threats, without exception.


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