Standards for A Hostile Work Environment Claim
Aug. 26, 2015
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 the law 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 stringent prohibition against negative 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 an excellent summary:
In Texas, an illegally 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 must investigate the workplace as soon as they know about a potentially 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 that ANY employee who legitimately perceives a hostile work environment experiences a threat or believes someone else is feeling threatened must report their observations to management. I also suggest that policies require progressive discipline for any employee who makes veiled, outward, verbal, or physical threats without exception.