In this episode of the Employee Survival Guide, Mark confronts and explains one of the most overused and most misunderstood employment law phrases out there. What is a hostile work environment anyway? Mark wants to end the confusion once and for all. After you listen to this episode you will know what is and what is not a hostile work environment.
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Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you as always, what your employer does definitely not want you to know about, and a lot more. Hey, it's Mark again, and I want to talk to you about a topic that I hear a lot. And what is hostile work environment? What is it? People talk about and use that phrase so often. I mean, at least several times a week, people will call me trying to find out their vacation odd. And they just rattle off this phrase of hostile work environment, that they've been experiencing it. And I had to basically do a episode about this because it's so overused, but so misunderstood. In terms of the common parlance of just everyday folks who working. I wanted to set the record straight of what it is what it's not. Why is this a problem? And I'm going to just say that I blame employers, because your employer is not going to explain to you what it is when it's not, almost as if they're just kind of impugn from like any, like responsibility to help explain it to you. I know it's gonna appear in some definition in some manual you employer gave you I know, it's probably gonna be talked about in some sexual harassment training that you attended years ago, but had literally no effect. I mean, literally, the EEOC admits that EEOC training at our sexual harassment training does not work. But it is so overused, and it applies not only in the sexual harassment context, but it applies in every discrimination context, because it's used. I use it as a claim against employers all the time. But it has to fit within a certain rubric of requirements that that the law says it is what it is. So that's the purpose of the podcast episode is explain. So that you can refer to this episode and saying, Okay, now I get it. Now, I know what hostile work environment is, I know what it's not. So it should be very clear about what it isn't. It's not gonna when I'm done with the episode, but let's just dive into it. The Society for Human Resource Management SHRM, until you know what the who they are, they're a association that advisors and employers, they're an employer organization. Well, where's your employee organization? Well, there really is not one. There's the National Employment Lawyers Association, but that's for me. But that has some information out there, we are actually producing a website that's going to be called employee survival.com. And we'll be out shortly where you can actually go to that information that source and get information much like our website. So here's what Society for Human Resource Management defines as hostile work environment, quote, a hostile work environment is created when harassing or discriminatory conduct is so severe and pervasive. It interferes with an individual's ability to perform their job and creates an intimidating, offensive or offensive, threatening and humiliating work environment, or causes a situation where a person's psychological well being is adversely affected and quote, let me unpack that for you. And then I can get deeper into this as we move along. harassing or discriminatory conduct while I'll define harassing contact and the second point, well, how the EEOC defines it, discriminatory conduct, it's essentially people holding a bias towards you. But they now qualify is in the definition I just read to you is what really, how courts interpret if you had to, if I'm talking to a federal judge, and explaining that the person is subject to a hostile work environment and debating the topic that I know and the judge knows I need to basically ramp up it facts that show that you know, the person is in good, you know, is subject to a severe situation. I mean, we're talking severe and now you I'll explain that in a second. And pervasive meaning it's ongoing. It's happening quite often in an employer's can't control it. And then the Sherm definition also says interferes with the ability to do to do their job. Now, that's a matter of subjective point of view. It's interfering with your job. Think about that for a second. interfering with your ability to do Your job, it's making it uncomfortable and whatnot. And let's be very clear, when is this really happening to you, it's happening when you're about to be fired. It's the there's two types of cases, it's it's hostile environment, because they're trying to set you up for fire and make you quit, or the shits really happening too, and that the employer is unaware of it. And there's a really rogue agent here, he's engaging or she's engaging, it can be either or, and it's, you know, it's either one or the other. Okay? So it's happening in the context, more often than not in the in the setup for termination. And so interfere with your ability to do the job, it's not really stopping you from the job, it's just making it really uncomfortable. I mean, just, you're reaching a point where I had a call the other day, actually, yesterday, the individual wants to hire us, but she's really nice lady, but she's having a problem. Just coping, it's like in producing anxiety. And this is quite common people, I had another gentleman I'm dealing with now, in his 60s 59, I think, and he's also subject to, he's having anxiety, and not diagnosed yet, but having anxiety and panic related to what he's experiencing. So, so the severe, pervasive, so severe, it's serious and ongoing, pervasive happening all the time. And it's creating an intimidating, offensive and threatening and humiliating work environment. I mean, one or all of those things can happen. So intimidating, we all know what that is, it's the bully at work, whatever. And it's the people abusing their positions of power and just, you know, trying to control us the offensive is offensive, you know, if it's someone calling someone, you know, a derogatory statement or a sexual comment, or, you know, I actually have a case right now, the C word is used in the workplace from, I'll be my client. And obviously, the employer denies everything, of course. But you know, that's pretty offensive to use a C word to describe a woman and workplace threatening. I had the same individual who uses a C word threatened to do harm to a family member of my client, I mean, that's something usual happens. I have had one client who was punched by a CEO years ago, in an office, in a meeting in front of other people. I mean, that's bizarre, the CEO is actually the majority shareholder of a major financial firm, he lost his control, and the Delaware, chancery court took it away, and allowed the minority shareholder group to take over control the company, pretty serious event, so he got slugged in an office meeting. So that's a threatening environment. And now I and I spoke about the logical psychological well being aspect. And that's whereby you, basically, you, you're subjected to this behavior happening all the time, pervasive and severe. And you're basically losing your shit because you have an anxiety and you don't have like, organic anxiety and depression, you should have situational. So if you went to a Diagnostic Statistical Manual, revise number five, which is a real documents, what a book that psychologists and psychologists used to diagnose people's mental nervous conditions, you wouldn't find language and symptoms that someone would experience that is situational. So it's you're having a situation caused by some Yahoo in work, that is trying to get you to quit, maybe putting you on a pip all this kind of stupid stuff that happens. It's really just kind of fiction that you're trying to make it up, you know, you're doing your job just fine. It's just, they have other concerns. I'm only just describing what employers do to you. doesn't make it right. It's just that the current state of affairs to fire you is to make you quit first, and then set you up for firing later on and then create this hostile environment. So in that Sherm definition I've now described, and you got a good sense of what hostile work environment is. And let me get a little further into this. The EEOC has a definition call of harassment, I'm going to actually read it to you so you understand this, quote, harassment is a form of employment discrimination that violates Title Seven of the Civil Rights Act of 1964. A very important statute, the Age Discrimination and Employment Act of 1967, another important statute and the Americans Disabilities Act of 1990. I will also caveat and say that harassment is a form of discrimination applies under 42 USC 1981, which is a civil rights statute that we use to enforce and prosecute race discrimination cases. For everybody, not just African Americans, it's white reverse discrimination. It's Asian it's black. The EEOC goes on to say harassment is unwelcome conduct. That is based on race, color, religion, sex acts including sexual orientation, which is now the law of the land folks, gender identity and pregnancy, national origin, older age, and I'm reading now, so beginning age 40. So that's how the law applies disability or genetic information, including family medical history, harassment becomes unlawful were number one, in during the offensive conduct becomes a condition of continued employment, or to the conduct is severe or pervasive. So it's one or the other, enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive to any of those. anti discrimination laws also prohibit harassment against individuals in retaliation for filing discrimination charges, testifying or participating in any way in an investigation, proceeding or lawsuit under these laws, or opposing implement practices that they reasonably believe discriminate against individuals in violation of these laws and quote, so that's when the EEOC has definition of harassment on their website eeoc.gov If you're not familiar with it, get familiar because it's free then the EEOC goes on to say the following topics types of conduct do not constitute hostile work environment so I told you I'm gonna go into what is what is not. And I'll end with what is and what examples I have for the offer you because there are many. If you do this for enough years, you see a lot of garbage from employers and you get really tainted and slighted and you like there's no good code of conduct are good company out there. They're all bad. Sorry. Chill jaded. The EEOC says petty slights, annoyances and isolated incidences, unless extremely serious, will not rise to the level of illegality. That's mean just being unlawful. To be unlawful to conduct must create a work environment that would be intimidating, hostile or offensive to a reasonable person. What the hell's that mean? To reasonable person means you just put 10 people in the room and saying the final demand original and you take the poll and people say five out of 10 Six out of 10 Seven out of 10 Find it unreasonable. So the petty slights and annoyances This is where the misunderstood part of the people's understanding of what a hostile working means. I hear just about every story of just someone just disrespecting them at work. Talking them in a downward manner being insulting, sarcastic critical, yelling at them. Just being a bully being difficult, whatever. And you know just in it happens all the time. And they're like every day every week and just doesn't stop and typically happens when people are getting ready to be fired. And boys I want you to put the writing on the wall make your work environments suck essentially what it means and they'll it's cheaper for you to quit, by the way, because you can't claim unemployment benefits. So that's why they do it. If they have to fire you, I mean they can fire you that's well they don't give you a reason at all. They just fire you then it's happening regularly though. It's to march 2023. So it's happening quite often. The recession that hasn't become yet it's what I define it as anyway the petty slights and annoyances I hear the story of this this junk that's thrown at people nice folks to everybody's just, you know, just didn't see it coming and all of a sudden the train wreck happens and they're like, they call me like what can I do about it? I had to explain the same conversation to them that it's has to be over rise to above a level of this the petty slights and annoyances, and the bully behavior. And look when I you get on a call with me. I'm looking for how you're treated differently because of some type of protected status like you're a age race, religion, disability. Retaliation you because you complain about something, I'm just looking to hook that bad behavior you're experiencing by your supervisor or your your co worker, and you're protected status. If it's not there, and the petty annoyances slides in an isolated incidences are just they're bad. But they're not severe. They're not. You're not using the N word you're not describing pregnant woman as you know, having baby brain you're just not jumping over. You're not referring using the C word to describe women. You're not using sexual orientation like you know, the sorry that you're something about being gay or sexual intention. And I kind of I don't want to spread and use the derogatory language because I don't really think it's appropriate but it's it hasn't. It's over a threshold. And so you're going to my point being is that you're going to experience a CRUD load of material behavior by your employer that just just not really humane to you but doesn't get to illegal status. And so I think there's some level of training given to employers and managers. They are always going to screwed up, the manager is just going to take the direction and then screwed up. And because I hear, for example, I hear example, in aged cases, I always ask the person to they ask you about your retirement plans, like you know, once you retire soon, how old you? Did you know that both of those comments are illegal? You can't ask people that. And if you ask it right before they're fired, or before a pip, well guess what come to me that's a nice case could because they're taking your agent to consideration to evaluate your job. So that may be a hostile environment, but they're using exhibiting bias towards you on the age example there. So there's a certain threshold to get over. Now. What is considered EA legal conduct by the EEOC, let's because I've been talking around that bush all day. So here the EEOC says here's what is illegal, quote, offensive conduct may be may include, but is not limited to offensive jokes, slurs, epithets, or name calling, physical assaults or threats, intimidation, ridicule, or mockery. Insults or put downs, offensive, offensive objects or pictures. That's your pinup Calendar Girls that you used to put up in the office in that locker room, and interference with work performance. Harassment can occur in a variety of circumstances including but not limited to the following circumstances. A quote the harasser can be the victim supervisor, a supervisor in another area, an agent of the employer, which can be an independent contractor, by the way, a co worker or a non employee, again, independent contractor, the victim does not have to be the person harassed, but can be anyone affected by the offensive conduct. That's really where you're, you're basically infusing the workspace with your shit, your sexual connotations, your C word, your whatever. And other people in that environment are affected by it, because they're like, What is this why, and they're being subjected to that other than the victim herself or himself. ESC goes on one last example is unlawful harassment can occur without economic injury, or to discharge or discharge of the victim. So you don't have to be fired to experience hostile environment. And so those are what the EEOC describes it. So I have just example, upon example, and I thought about what are the best ones I can give to you, I have had cases where the N word is used about clients. Clearly, and I've read cases to where the N word is used. But the court said it was not unlawful or hostile. It's not weird that you can use the N word at work. And we're talking in a really derogatory way. We're not talking because you're hurling rap song played in the office, we're talking about someone using the N word. One time in the court says me, I'm not enough. And you got to know, folks that just because the law is illegal on this concept of describing, you know, if at the derogatory N word is used in a work environment, judges have different points of view. Politically, they're appointed by who politicians. So President, so in the federal court, and so the don't expect that every case is going to fall down exactly the same, so it doesn't happen. Other examples of hostile work, remember, I, I was referred to the CEO punching my client, because it was just well, it was serious, but it was also very funny and serious, because he shouldn't be doing that in front of people in a workspace, because they can't control their anger management, if whatever is happening to them. My client did get assaulted, he did resolve the matter. And he was well compensated, of course. The other examples are my favorite is just pregnancy related comments that men and women when don't, or they do it to, to other women, and it's weird, I know. But they it's just anything about having pregnancy or just the baby brain comment. Just that they're, you know, something about, you know, anything pregnancy related. Men have just made derogatory sexist remarks, because it does fall into the venac the vein of in category of sex discrimination. And in we all know the result of you know, bias towards pregnancy, which can exist in the hostile environment situation because, you know, the woman has to take time off for maternity leave, and employers don't like it and I cannot understand why this. Those cases still exist, but they just ramped the crap up on pregnant employees all the time. And if they're my favorite case, because there's so easily to deal with on my part, and there are always I always can resolve them. But just employers make stupid mistakes. It's just when you have someone who's pregnant, do the opposite. Show them how much you care about, they're going to have a beautiful life event with their, their spouse or their partner, and have a new baby brings the world because everybody came in the world the same way, but just don't make their life hard. Okay, it's just asinine that it happens. And I'm not kidding you. It happens every once a month, I got a call for a pregnancy case or hear about a case or have a case. So they exist the real sex cases, you can have the standard stupid chunk of derogatory language about male and female, about just, you know, sexual connotations, some tests it. You know, sex is a very powerful thing we actually protect in our society, sex more than anything else. race, age, whatever, we've passed the laws to the SpeakUp act. So to eliminate the pre dispute, non disclosure issues, think about the Weinstein case, we're thinking about the ending while the Biden's signed the forced ban on arbitration, for sexual harassment, sexual assault cases. I mean, even in the Southern District in northern, the district, Connecticut, the federal courts, when you have an emotional distress case, it only has to be connected to a sex discrimination or sex, gender case or sexual harassment case. All other cases of claims of emotional stress and employment setting are, they don't rise to the level we treat sex differently. I don't know why that is, but our culture is, it's finally maybe it'll get to a level where we treat all of the protected classes the same way but sex, it's a major deal. So in this hostile work minds context, you have you know, think of your use your imagination, you have a lot of men and women using pejorative language to describe one another person, and an attempt to intimidate them. I don't necessarily hear nor see the cases where it's kind of, you know, quid pro quo, you know, you, you know, if you have sex with me, I'll promote you that type of thing. I don't think that's happening as much. I think it's more of just this subversive, disgusting, like, you know, language it's being used, or just treating people differently, men get more favorable treatment. There's a story that I'm gonna actually do an episode on an actually multiple episodes where it's like the worst sexual harassment story I ever heard. I mean, it's on our podcasts in our website. And you can read a bit, and I included the copy of the complaint. One example just to kind of get a taste of this. The manager wrote in a car, and he did this quite often with his employees, had the females come in the car with him. And he would, I mean, get old disgusting, but he would basically pull his phone out, turn on some type of porn website and make his subordinate worker, watch him as he masturbated in the car. I'm not kidding. It's really gross. But this fellow did it. And he's an actually has a podcast, where he's challenging the victim of this today still going on. So you jump into that story. It's an ongoing affair right now. It's in the court in the Eastern District of Pennsylvania federal court. So it's, you know, this stuff really happens. There's really people who don't treat females equally, and it gets really bizarre. So there, that's a hostile working example I just described to so can you now see that there's a distinction between chest petty slights and bullshit than disrespect? You know, that people perceive but and it has to get to a level of chest, you know, severity. And I'm going to just close by saying that you're going to endure a lot of crap before it becomes illegal. All right. And you got the now the gist of it. Okay. When you say you call me on the phone and saying it's a hostile Workman, I've been subjected to be prepared to tell me the severity ailments. First, give me the the high points, give me the top three things that happened to you on like, did that happen? Over a period of, you know, ongoing period of time? And you say yes, like that it's going to be a hostile environment. And it's going to be claimed by itself that exists in a in a complaint in addition to sex or whatever the underlying protected classes of discrimination and bias. So now, you know, there is a distinction, and it has to go up a hill, and you're going to go up and push up that hill. Endure that crap from that manager or that coworker for a long period of time. And until it reaches a precipice, and somebody made a mistake, lack of judgment, whatever it was, and just began to just change that work environment and in such a way that you're freaking out. And that's what hostile work environment is. And it's, I didn't try to use any type of legal jargon other than when I quoted, because I wanted to make sure that we just talk and just regular speak and just like, understand it, because a lot of this employment law concepts are overinflated, over defined. And it's designed to basically keep it away from your understanding. And that's my sole mission is to basically make it understandable for you to digest it. I think this concept today is a hostile work moment, you get it now, okay. And so, food for thought, if you're seeing going through it, you know what it looks like now. And the examples are endless. I can go on and on and on and on. But you now get the gist of what it is not. I hope you found this informative. And as always, thank you for listening, talk to you soon. If you'd like the employees who have a God, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely that you can actually use and solve problems on your own and at your employment. So if you like to leave a review anywhere you listen to our podcasts, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up. I'll keep the information flowing out you. If you'd like to send me an email and ask me a question. I'll actually review it and post it on there. You can send it to mcarey at capclaw.com That's capclaw.com