Hostile Work Environment

Example

Ana, a new lawyer who has just passed the bar exam, begins working at a law firm. Because of her Muslim faith, Ana wears a hijab to work. Another lawyer at the office, Christopher, begins harassing Ana. On her first day at work, Ana hears Christopher ask colleagues, “Why do I have to work with that Muslim?” Over the next several days, Christopher mocks Ana’s Muslim faith. For example, when Ana is within earshot, Christopher tells the other lawyers that “Islamofascism” is the main cause of evil in the world. He also tells them to “be careful” because “you never know when a terrorist is just around the corner.” During the second week of Ana’s employment, Christopher approaches Ana and tells her to take off her hijab. Ana refuses. Christopher says that if Ana doesn’t remove her hijab, he’ll tell the firm’s partners that she’s a member of ISIS, and he’ll have her fired. Ana refuses again and leaves the room. Christopher has created a hostile work environment, because his comments harassing Ana on the basis of her religion made it intolerable for a reasonable person to continue working at the office.

Case Examples

• Elements of a hostile work environment claim: To file a hostile work environment claim, “the plaintiff must show that: (1) the victim belongs to a protected group; (2) the victim was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic; (4) the harassment affected a term, condition, or privilege of employment; and (5) the victim's employer knew or should have known of the harassment and failed to take prompt remedial action.” E.E.O.C. v. WC&M Enters., Inc ., 496 F.3d 393, 399 (5th Cir. 2007). In that case, the E.E.O.C., acting as the plaintiff on behalf of Mohommed Rafiq, brought a case against WC&M Enterprises, Inc., the Defendant, for permitting a hostile work environment based on Mr. Rafiq’s religion. Id . The Defendant allowed several of its other employees to make comments to Mr. Rafiq, implying that because he was Muslim, he was involved in terrorist attacks against the United States, as well as repeated comments that he should go back where he came from. Id . The Court found that these repeated comments created a hostile work environment. Id .
• Employees must file a hostile work environment claim with the E.E.O.C. prior to suing their employer. This is known as an administrative remedy. It puts the employer on notice that a claim has been made and starts an investigation process at the E.E.O.C. If the E.E.O.C. determines they are not going to pursue the case, they will issue what is known as a “right to sue letter” (officially called a Notice of Right to Sue), which allows the person who filed the claim to sue their employer in court. If an employee sues their company for a hostile work environment prior to receiving a right to sue letter, the claim will be denied, as the employee has not exhausted their administrative remedies. See e.g. Walton-Lentz v. Innophos, Inc., 476 F. App'x 566 (5th Cir. 2012).
• Severe and Pervasive: For an employee to file a claim of a hostile work environment, the behavior giving rise to the claim must be severe and pervasive. For example, in Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805 (5th Cir. 1996), the Plaintiff, Delores Farpella–Crosby, sued her employer, Horizon Health Care, the Defendant, for a hostile work environment when it allowed other employees to make comments several times per week regarding the Plaintiff’s children and her sexual activity . Id . The Court found that the comments repeated over an extended period created a hostile work environment. Id . In contrast, the Court determined that infrequent rude emails, snide comments, and workplace disagreements did not constitute a hostile work environment. See Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015).