EEOC hostile work environments: Top employer considerations

EEOC-hostile-environments-450x350pxEmployers should never tolerate hostile behavior in the workplace, but unfortunately, it’s a problem that continues to persist around the globe. In fact, 1 in 5 employees (23%) have experienced some form of workplace harassment, discrimination, or violence — a worrying statistic. Another report found that only 50% of victims told someone else about their experience, and that was typically after more than one incident took place.

Why don’t more employees speak up?

It’s primarily due to the fear of retaliation (firing an employee for taking action against the company). However, employees can make hostile work environment claims to the EEOC if the offensive conduct reaches a point where they can’t perform their regular job functions. The Equal Employment Opportunity Commission enforces federal laws that protect employees from workplace discrimination and harassment.

It’s illegal for employers to harass or discriminate against their employees based on their:

  • Age

  • Gender identity

  • Sexual orientation

  • Genetic information

  • National origin

  • Disability

  • Religion

  • Marital status

  • Pregnancy

  • Race

  • Color

If the hostile behavior isn’t addressed and corrected internally by the company, employees are free to file discrimination claims to the EEOC. If the EEOC’s internal investigators can uncover evidence of discrimination, they may take the offending organization to federal court.

Public discrimination claims can bury organizations, so you should avoid them at all costs. Moreover, you should do your best to elicit a positive work environment to ensure peak productivity and employee satisfaction.

Read on to learn the top considerations employers need to make to avoid EEOC hostile work environment claims.

Understanding the EEOC

What’s the EEOC?

The U.S. Equal Employment Opportunity Commission is an independent federal agency that enforces federal anti-discrimination laws in the country’s public and private workplaces.

They feature a team of internal investigators that look into discrimination and harassment claims nationwide to determine their validity. Whenever they have the resources, the agency will also litigate discrimination cases in federal court.

Besides that, the EEOC also holds hearings, provides guidance to other federal agencies, and provides outreach, education, and technical assistance to prevent discrimination before it happens.

Here’s an overview of the primary employment discrimination laws that the EEOC enforces:

The EEOC works to prevent hostile work environments, but they have a strict set of criteria that a claim must meet to investigate the issue.

What does the EEOC consider hostile behavior?

Certain behaviors are unacceptable in the workplace, and if left out of control, they can cause a hostile work environment.

Here’s a list of the most concerning behaviors employers should look out for:

  • Racial slurs

  • Offensive language and jokes

  • Sexual harassment

  • Epithets and stereotypes

  • Purposely interfering with an employee’s work performance

  • Name-calling

  • Physical intimidation

  • Threats and physical assault

  • Mimicry and excessive gossip

  • Showing offensive media or pictures during work hours

If you notice any of these behaviors at your organization, you must act quickly to shut them down immediately. Otherwise, you may have an EEOC hostile work environment claim to deal with, which is never good.

The best defense for harassment claims is to enact strict anti-discrimination policies at your workplace to ensure that hostile behavior doesn’t get out of hand.

What’s harassment?

The EEOC considers harassment a form of discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the ADA.

The agency defines harassment as unwelcome conduct (i.e., insults, offensive jokes, inappropriate touching, etc.) that’s based on an employee’s race, religion, gender identity, sex, national origin, genetic information, or disability.

However, there are a set of stipulations for when harassment becomes unlawful.

They are as follows:

  1. The harassing conduct must be an everyday occurrence.

  2. The harassment is severe enough to create a work environment that a reasonable person would consider hostile, threatening, or inappropriate.

Isolated incidents, annoyances, and petty slights aren’t severe enough to be considered unlawful in the eyes of the EEOC. For a harassment claim to stick, the conduct must be pervasive enough to render the entire work environment hostile.

What does this all mean for you?

As an employer, you’ll be held liable for any harassment claim made against one of your supervisors that results in a negative employment action (termination, lost wages, etc.). You’ll also be found liable for harassing conduct from non-supervisory employees and non-employees (contractors and freelancers) over whom you have control. In other words, you, as the employer, have control over your staff, so the EEOC views it as your responsibility to identify and resolve harassment and discriminatory behavior.

Once again, the best tool you have to stop harassment claims is prevention. Since the onus is on you to stop harassment before it gets out of control, anti-harassment policies and training are highly recommended.

If there are discrimination charges brought against one of your supervisors or employees, there are two ways that you can avoid liability:

  1. If you can prove that you tried to reasonably prevent and resolve the harassing behavior.

  2. If you can prove that the employee failed to take advantage of any corrective or preventive opportunities you provided.

If you can’t prove that you attempted to take the appropriate action, the EEOC will find your organization liable for the illegal behavior.

What qualifies as an EEOC hostile work environment?

Just like harassment, the EEOC has a strict set of standards for what constitutes a hostile work environment. While an employee may feel their work environment is hostile, if it doesn’t meet the EEOC’s standards, they won’t be able to file a claim. The waters become a bit muddy here, as there’s no exact formula for determining if a workplace is hostile or not.

While there are requirements for a hostile work environment, such as when the harassment becomes so pervasive that an employee can no longer perform their tasks – pinpointing the exact moment when the behavior goes from hostile to illegal is tough to do.

For instance, the offending behavior must be perceived as intense to be considered a hostile work environment, but what qualifies as ‘intense’ is up to interpretation. The ultimate decision is up to the discretion of EEOC’s internal investigators.

As mentioned on the EEOC official website, they determine whether workplace harassment is severe enough to be considered illegal on a case-by-case basis. Bearing that in mind, here’s a look at the top factors the EEOC will consider when determining if a workplace is hostile or not.

1. The conduct must interfere with work performance

First, for a work environment to qualify as hostile to the EEOC, the employee must be able to show that the harassing conduct directly interferes with their ability to perform their job duties. It could be that an employee can’t focus long enough to get work done due to continued insults and offensive jokes made by a supervisor or a colleague. Or the harassment could be more physical, such as inappropriate touching or aggressive pushing/shoving.

Important note about who can file an EEOC hostile work environment claim: The direct victim of the harassment isn’t the only employee who can claim they’re working in a hostile environment.

For instance, if an employee notices harassing behavior targeted at a colleague that the employer fails to resolve, they can also claim they’re working in a hostile work environment.

That goes to show how crucial it is for employers to identify & resolve instances of harassment and discrimination internally before it gets out of hand. Even if the main employee on the receiving end of the harassment doesn’t speak out, it doesn’t mean that others won’t.

2. The conduct must discriminate against a protected group

As stated before, the EEOC exists to enforce anti-discrimination laws for public and private employers, which is why some form of discrimination must be involved in a hostile work environment claim. The EEOC defines discrimination as offensive conduct aimed at a protected class, such as race, gender identity, sex, national origin, disability, or genetic information.

If the harassing conduct taking place at your organization doesn’t involve a form of discrimination, you won’t be able to make an EEOC hostile work environment claim.

For example, if an employee keeps giving a coworker a hard time for their taste in movies, it wouldn’t be considered discrimination (although the employer should still take disciplinary action if the harassment persists).

3. Ineffective policy enforcement

If an employee experiences workplace harassment that’s pervasive and threatening enough to want to file a claim with the EEOC, the chances are high that the employer is aware of the behavior. As stated before, the onus is on the employer to identify and eradicate all forms of harassment and discrimination in the workplace.

If the employer ignores the offensive conduct and fails to do anything about it, they’ll be held responsible for fostering a hostile work environment.

4. The conduct must be unwelcome

There’s a difference between offensive conduct that’s welcome and unwelcome. Some people may actually enjoy making offensive jokes aimed at one another, or they may take part in some good-natured roughhousing. What matters to the EEOC is if the employee doesn’t welcome or appreciate the harassing conduct. In that case, the employee would be free to file a hostile work environment claim.

However, it’s important to remember the stipulation we mentioned earlier about who can file a claim with the EEOC. While two male coworkers may enjoy roughhousing or making crude jokes to one another without offending one another, that doesn’t mean the rest of the office is on board with their childish behavior.

If their conduct is distracting or offensive to the rest of their team, they may choose to do something about it. That’s why the best thing you can do as an employer is enforce policies that require all staff to behave civilly during work hours.

5. The conduct must be intense

EEOC-hostile-environments-450x350px-2Lastly, the harassing conduct must be considered ‘intense’ by the EEOC. While this can be very subjective, the agency considers some types of behaviors as more intense than others.

Here’s a list of behaviors that may be seen as more ‘intense’ or ‘hostile’ than others:

  • Physical assaults that cause pain

  • Racially charged insults aimed at protected classes

  • Sexual harassment

  • Gender identity discrimination

  • Physical behavior that interferes with job performance (i.e., pushing, shoving, hitting, etc.)

While the EEOC judges each case individually, these 5 factors are strong indicators of a hostile work environment.

Final thoughts: EEOC hostile work environment

The Equal Employment Opportunity Commission protects all U.S. workers from harassment and discrimination in the workplace. Should an employee experience pervasive, intense harassment at their place of employment, they’ll be able to file a hostile work environment claim to the EEOC. As an employer, your best defense is to address instances of discrimination before they go too far.

How do you do that?

You can by requiring all managers to engage in anti-discrimination training. Also, get your human resources department to draft policies prohibiting offensive or discriminatory behavior.