As a plaintiff’s employment lawyer representing employees throughout South Carolina, I get calls quite frequently from potential clients who believe they’ve been subjected to a hostile work environment. Very often these employees mean that phrase in the common usage, meaning that the work environment is uncomfortable or unpleasant, or that the managers or co-workers are downright bullies. I can certainly sympathize with those employees. I think everyone reading this post has probably had a job in a terrible working atmosphere.
But “hostile work environment” under state and federal anti-discrimination laws actually has a very specific definition. It’s not just that you are subjected to poor working conditions or bullying or harassment in a general sense. Rather, the harassment must be targeted towards you on the basis of a protected category or class (meaning your age, race, sex, national origin, religion, or disability, among others).
In this post, I’m focusing on harassment based on sex and how that can lead to a hostile work environment under Title VII of the Civil Rights Act (the primary federal law that prohibits discrimination in the workplace). Additionally, both sexual orientation and gender identity are now included in the definition of “on the basis of sex.”
Types of Sexual Harassment
One of the most common forms of sexual harassment is unwanted sexual advances. This can include comments about a co-worker’s body parts or looks, especially comments that are sexual in nature. Sexual jokes about explicit matters in the presence of a co-worker of the opposite sex would fall under this category. Other more serious examples include unwanted touching, indecent exposure, groping, and sharing of unsolicited nude pictures (“dick pics,” as the kids might say).
Another form of sexual harassment is quid pro quo harassment. This means that a supervisor or manager offers better work benefits (schedule, raise, perks) in exchange for sexual favors from the employee. Or the manager may threaten an employee’s job and livelihood if the employee doesn’t comply with the sexual request.
One instance of this type of behavior, if egregious or severe enough, may create a hostile work environment. Sexual assault, such as groping of body parts, may fall into that single instance category. A single utterance by the harasser probably isn’t enough. But often we see employees who are subjected to sexually harassing behavior over a long period of time. Then it becomes pervasive and infects the workplace so much that it comes a sexually hostile work environment.
What Creates a Hostile Work Environment Based on Sex?
A sexually hostile work environment means that the harassment is so bad that it has altered the terms and conditions of employment and has created an abusive working environment. In order to determine whether the workplace reaches the standard of a hostile work environment, the court looks at the frequency of the harassment, how severe it is, whether physical threats or humiliation are involved, and how much it interfered with an employee’s work performance. These are the same facts, then, that I have to look for when interviewing a potential client about a sexual harassment and hostile work environment claim.
How Can I Pursue a Hostile Work Environment Claim?
Hostile work environment claims are pursued just like other discrimination claims, first through the EEOC and then in state or federal court. However, these types of cases often provide for other possible legal claims that a South Carolina employee can bring. If there was unwanted touching involved, then the employee has a claim for assault and battery against the abuser. Certain types of extreme behavior (and the human heart never lacks for new and terrible ways to treat other human beings) could create claims for intentional infliction of emotional distress. I consider all of these other options during the course of a consult with an employee. We also consider all possible damages that can be recovered.
Employees subject to these types of harassment often feel scared and alone, even unsure of how to proceed. But if you’ve experienced any of the discrimination or harassment as discussed above, you should know that the law offers protection. And a South Carolina employment lawyer can help guide you through the process to seek that protection and fight for you to hold the company and harassers responsible.
