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With the advent of Title VII of the Civil Rights Act of 1964, several key aspects of illegal harassment were defined, greatly expanding protections under federal law. Characteristics such as race, color, religion, sex, and national origin were legally sheltered against harassment by the text of Title VII. Specifically defined within this law are two kinds of harassment: quid pro quo harassment and hostile work environment harassment. While both of these types of harassment may overlap in some respects, they are distinct in several key ways
How Is Hostile Work Environment Harassment Different Than Quid Pro Quo Harassment?
Quid pro quo is a Latin term essentially meaning “this for that”. Quid pro quo harassment in the workplace generally involves someone in a position of power offering benefits or threatening consequences to a subordinate in exchange for sexual favors.
In contrast, hostile work environment harassment does not necessarily involve coerced exchanges for employment benefits. Instead, it more broadly involves creating an environment that is intimidating, hostile, or offensive often due to sexual misconduct. It may involve employees and coworkers at any level of an organization, not just those in positions of power.
When such an environment hampers an individual’s ability to perform their job or changes the conditions of their employment, it crosses into hostile work environment territory.
What Defines Hostile Behavior Harassment?
Determining what qualifies as a hostile work environment can be a bit murky at times. Afterall, is any offensive remark harassment? Does every R-rated or distasteful joke constitute a hostile work environment?
To qualify as hostile behavior harassment, the unwelcome conduct must be based on an individual’s protected characteristic, such as their sex, and be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Such behavior might include unwanted sexual advances, sexual comments, jokes, or physical actions of a sexual nature. Additionally, it might also include derogatory remarks or displays that denigrate or show hostility towards an individual because of their sex or other protected characteristic.
The key factor in determining whether behavior amounts to hostile environment harassment is the perception of the individual being harassed and whether a reasonable person in a similar situation would find the conduct hostile or abusive. Pervasiveness and persistence are key here. When behavior is so disruptive, invasive or persistent that the environment is no longer conducive to work in the eyes of a “reasonable person”, it is likely that the work environment has become hostile.
What is an Example of Hostile Environment Sexual Harassment?
An example of hostile environment sexual harassment could be a situation where an employee consistently makes sexual jokes or comments, or sends explicit emails, creating an uncomfortable work atmosphere. In another instance, an employee might display sexually explicit material in a common area, making others feel uncomfortable or demeaned. It could also involve repeated unwelcome requests for dates or inappropriate touching.
Remember that these actions do not have to be targeted at a specific individual. If these behaviors are happening in a way that makes the workplace hostile for anyone present, it could be considered hostile environment harassment.
Again, pervasiveness and severity are the high water marks used to determine if inappropriate behavior has created a hostile work environment. If the the actions of the offending employee are such that another employee or employees workflow is encumbered, it is likely the legal definition of hostile work environment harassment has been met.
How Do You Deal With a Hostile Coworker?
Dealing with a hostile coworker can be challenging, and It’s essential to take careful steps to address the issue directly and professionally:
- Document the behavior meticulously: Keep a detailed record of each incident, including what happened, when and where it took place, who was involved, and any witnesses.
- Confront the coworker: If you feel safe, tell the coworker that their behavior is not acceptable, that it makes others uncomfortable, and that if it continues, management will be pulled in.
- Report the behavior: If the coworker continues to behave inappropriately after you have addressed it with them, or if you feel that the situation is unsafe right now, report the behavior to a supervisor or the human resources department. Do this in writing and verbally, to keep a paper trail of the report.
- Seek support: Reach out to a trusted colleague, mentor, or counselor who can provide advice and support. Let them know what is happening and ask for advice. Don’t worry about offending anyone – harassment is not acceptable but will likely continue until the perpetrator is confronted, and seeking advice is a good start.
How to Deal With a Hostile Employee?
As a manager, handling a hostile employee requires a delicate balance of understanding, firmness, and action:
- Document incidents: As with a hostile coworker, it’s important to keep a detailed record of the employee’s behavior. Include the complaints of others and your own observations. Keep it factual and straightforward, leaving emotion out of your documentation that could cloud the facts down the road.
- Address the behavior directly: Speak to the employee privately and calmly about their behavior. Be clear about what is inappropriate and what changes you expect. Addressing this in private first is important so as to not put them on the defensive. Some employees may genuinely not understand that their behavior is offensive and addressing it in private gives them the opportunity to adjust and improve, without shaming or creating volatile situations in front of peers.
- Implement performance management: If the behavior continues, consider implementing a performance improvement plan outlining the following elements:
- Review relevant company policies, ensuring the employee has a sufficient understanding of them.
- Establish clear expectations with clear measurements as well as consequences for not meeting these expectations.
- Provide a formal, written warning, making sure the employee understands it has been placed in the employee’s permanent file.
- Written summary of all performance management meetings.
- Consider more acute disciplinary action: If the hostile behavior continues despite intervention, disciplinary action may be necessary, including suspension or termination.
Hostile Work Environment Sexual Harassment Liability
If an employer allows a hostile work environment to persist, they can be held liable under Title VII of the Civil Rights Act of 1964.
Liability depends on whether the employer knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action. Therefore, employers are advised to take complaints seriously, conduct thorough investigations, and act swiftly to prevent and address hostile work environment sexual harassment.
Additionally, employers should implement regular, annual reviews of the employee handbook and harassment related policies, conduct mandatory training for all employees and communicate company vision regularly.
By doing so, they can ensure a safer, more productive workplace for all employees, and potentially avoid costly lawsuits and damage to their company culture and reputation.