In Washington D.C. a legally blind African-American employee working in a division of the Department of Human Services was denied promotions and after filing discrimination charges within his agency, was transferred to work in a storage room. The room was dirty, unheated, had inadequate light and a poorly working telephone. In addition, for six years he reported to this facility with no job duties and no job description. In California, in a much less dramatic case, an employee of Amtrak sued his employer successfully for repeatedly subjecting him to harsher treatment and discipline than his co-workers. There is no question that workplace interactions particularly between supervisors and employees and employees and their co-workers are becoming more complicated and subject to scrutiny and potential liability than ever before. While sexual harassment claims are some of the most common hostile environment claims, workplace harassment doesn’t have to be based on gender. Where an individual’s workplace is permeated with discriminatory intimidation, ridicule and insult sufficiently severe or pervasive to alter conditions of the employee’s employment and create an abusive working environment, the law is violated and employers will be subject to liability. *Laws and Institutional Rules that Govern Hostile Work Environment Claims* Hostile work environment claims are a form of federal workplace harassment violations that fall under the protection of Title VII of the Civil Rights Act of 1964, which was further amended by the Equal Employment Opportunity Act of 1972. Each state also generally has its own statutory scheme for workplace harassment. For example, in California, harassment claims fall under the Fair Employment and Housing Act or FEHA. In addition, unions and state and city government institutions may have their own grievance policies in place that must be exhausted prior to filing any state or federal claims. In fact, failure to do so may result in a loss of the parties’ rights. Multiple claims are often involved in these types of cases. A retaliation claim for example, may be accompanied by a violations claim under the ADA if the person is disabled. For the purposes of this article we will look specifically at hostile work environment claims that are not sexually based. *The Elements of a Claim* The Equal Employment Opportunities Commission (EEOC) has set the guidelines for determining what type of conduct constitutes a hostile environment under Title VII. The factors that the court looks at are the same as those in a sexually based harassment claim. In order to meet those guidelines in general, the employer conduct must, as mentioned above, have the effect of unreasonable interference with the individual’s work performance or of creating an intimidating, hostile or offensive work environment. *Vicarious Liability of Employer* Similarly, where the harassment is that of supervisory personnel, generally the courts require that the employer must have had “actual or constructive notice of the conduct” and fail to take appropriate corrective action to be liable. Still, other courts have taken the position that in any case of harassment of any subordinate employee by a supervisor, employer knowledge of the harassment is not a necessary element of the Title VII action. *Sufficiently Severe or Pervasive Standard* Title VII violations will only be found when an individual’s workplace was permeated by discriminatory intimidation, ridicule and insult that is severe or pervasive enough to create an abusive working environment and cause tangible psychological injury. Behavior that is merely offensive will not rise to that level. *Objective and Subjective Standard* The courts in these cases must decide whether or not the conduct rises to the level where it was not only offensive and actionable on a subjective level to the victim, but also that a reasonable person would find the environment hostile or abusive. The standard involves reviewing all of the circumstances involved in the claim. This includes but is not limited to the frequency of the conduct, severity, whether it was verbal, physical, threatening or violent; whether the conduct actually results in unreasonable interference with the employee’s work performance and exactly what effect the conduct had or is having on the employee’s psychological well being. *The Examples* Let’s revisit the examples mentioned in the introduction. What about the employer who transferred the legally blind employee to an unheated storage room for six years with no job description and no job duties? Well this happened after the employee filed a discrimination claim based upon the fact that he did not get promoted to supervisor. Although that action was found to be retaliatory under a different section of Title VII, the hostile environment was found by the court to be the totality of his experiences over the course of six years working in an unheated storage room. The six-year time frame easily met the frequency and duration factor. The severity of the physical conditions, and the lack of job description and duties definitely resulted in unreasonable interference with his work performance. In his case, he didn’t know what he was supposed to do! In the less dramatic case, the Amtrak employee also prevailed because of the frequency of the disparate treatment, and the fact that the treatment was more than simply offensive. *Conclusion* The courts will look at the totality of the circumstances in these cases, so by no means does that suggest that all of the EEOC’s guidelines must be met in order for an employee to prevail in a hostile work environment claim. This is an extremely complex area of labor and employment law. A PEO can best help you navigate through the maze of the labor laws surrounding this and other employment issues. Visit the Employment Partners Web page or contact us directly. Lattimore Black Morgan & Cain, PC 615-377-4600 info@lbmc.com