The Expensive Lessons of Hostile (or Almost Hostile) Environments


Courts in employment cases across the country have disagreed on whether single incidents, or even a single word, can constitute an actionable hostile work environment related to a protected category (age, race, sex etc.) under Title VII, the federal anti-discrimination law, or it's state counterpart.  In New York State, a Court recently ruled that a single forcible kiss was indeed enough to create a hostile work environment based on sex/sexual harassment. Similarly, New Jersey courts have found that a single slur referencing a protected category may be sufficient to constitute a hostile work environment. 

In any jurisdiction, the greater the position and authority of the accused will tend to make the defendant employer vulnerable to the single incident/single remark finding of hostile work environment.  This concept was prominent in a recent case in Maryland that was appealed to the federal Fourth Circuit Court of Appeals.  In that case, a co-worker's use, on consecutive days, of a horrific racial slur was not enough to create a hostile work environment, in part because he/she was a peer and was not in a position of authority.  Of course, as at least one commentator has noted, an employer mired in a litigation arguing whether a hostile work environment existed has already lost in the sense of attorneys' fees spent, employees distracted and reputations tarnished in this Donald Sterling world of social media. 

For all of the above reasons, thoughtful training and vigilant management are more important for business than ever.