(402) 979-6077

The employee who cried ‘Hostile Work Environment’

By Angela Schmit and Megan Stevens

The employee who cried ‘Hostile Work Environment’

Like the boy who cried wolf, many workers (albeit unintentionally) claim they work in a “hostile work environment.” Misconceptions about what legally constitutes a hostile work environment claim have caused the term to be overused. Oftentimes, employees do not really work in an illegal hostile work environment, but have unfortunately been subjected to a boss or coworker who, for lack of a better word, is simply a jerk. While this may not be the best practice or make good business sense, it is not necessarily unlawful.

A hostile work environment is not a standalone cause of action, but is prohibited in conjunction with Title VII of the Civil Rights Act of 1964. A hostile work environment only occurs when discriminatory or retaliatory action is taken against a person who falls into a protected class. The protected classes include race, color, religion, sex, and national origin. An employer may not discriminate based on any of these classes when determining payment, terms, conditions or rights of employment. In the scenario where your boss is a jerk to everyone, you might have what we call an “equal opportunity harasser.” He’s yelling at everyone, not discriminating against any particular group. In that case, being a jerk in the workplace isn’t against the law.

The Eighth Circuit (which includes Nebraska and Iowa) has set forth five elements that must be shown in order to have a valid hostile work environment claim. First, the person has to be a member of one of the protected groups. Second, the person must show that unwelcome harassment occurred. Third, there must be a connection between the person’s membership in the protected group and the harassment that occurred. Fourth, the harassment must have affected a term or condition of the person’s employment. Fifth, the employer knew or should have known and did not take appropriate action to fix the situation.

To claim that it is a hostile work environment, the conduct or actions must have affected the person’s work conditions, making it more difficult to perform workplace functions and tasks. In addition, courts analyze whether the person complaining found the conduct or actions hostile or abusive and whether a “reasonable prudent person” would also find the actions or conduct hostile or abusive. If the conduct has affected a person’s work environment so they are not as productive or are unable to perform certain tasks due to the hostile conduct, the court may view this as evidence of a hostile work environment. Although it is not necessary for the conduct to cause medical or psychological issues, proof of such issues may also be viewed as evidence of a hostile work environment.

The conduct is analyzed as a whole, rather than as separate incidents. In order to be a true hostile work environment, courts analyze the severity and frequency of the conduct or actions. Typically, the more severe and the more frequent the harassment is, the more likely a court may find that there is a hostile work environment. However, not all conduct automatically creates a hostile work environment. Courts consider whether the conduct or actions are physically threatening or rather, offensive and rude. For example, an offensive joke here or there, or teasing that occurs over a long period of time may not be enough for a valid claim of a hostile work environment. However, if the harassment is more physical in nature, threatening, and happens frequently, it is more likely that the court could find a hostile work environment.

If an employee has complained to his or her supervisor about the hostile or abusive conduct, this means that the employer has been put “on notice” of the complaint. If this is the case, the employer has the duty to take action to try to help with the situation. If the employer has not taken any employment actions taken against the employee, such as firing or demotion, the employer may attempt to defend itself from the hostile work environment claim by arguing that it provided assistance to the employee or other measures to try to fix the situation, but the employee did not take advantage of the measures that were provided.

The laws relating to a hostile work environment and discrimination claims are complicated and every case must be considered individually. For assistance with your employment matter or to learn more about Schmit Law Firm’s services, contact us at or call (402) 979-6077.