Question:

There are very few women in my department at work. I spoke to one of my supervisors and explained that because there weren’t more women in the department, it felt hostile to me. I was asked if I was bringing a claim for hostile environment and/or sexual harassment. I don’t necessarily feel that I’m being sexually harassed, I just feel that the environment is hostile toward women. Is there a difference?

Some employees describe their work environments as “hostile,” meaning their co-workers or supervisors are unfriendly or rude. Legally, however, the term “hostile work environment,” has a specific meaning in the context of state and federal laws prohibiting harassment on the basis of sex and other protected classifications.

Answer:

The recent case of Kim Jones v. California Department of Corrections and Rehabilitation discussed the difference between a “hostile” environment that involves criticism or unpleasant working conditions, and a hostile work environment that constitutes illegal harassment or discrimination. In Jones, a female employee alleged that her male co-workers criticized her unfairly and treated her in a hostile manner. One male co-worker physically assaulted her during a dispute about the use of a wheelbarrow at work, and a supervisor directed her to work in an area that was infested with rats. After receiving a written warning to improve her performance, Ms. Jones went on a medical disability leave, and then sued her employer for gender discrimination and sexual harassment based on a hostile work environment.

In deciding whether or not Ms. Jones had a claim of harassment or discrimination, the court noted that claims of a hostile and abusive working environment due to sexual harassment arise when a workplace is “permeated with discriminatory intimidation, ridicule, and insult…that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

The court observed that not all workplace conduct that may be characterized as “harassing” constitutes sexual harassment. Rather, the conduct must be of the kind that a reasonable person would find hostile or abusive in the same or a similar situation. The requirement that the conduct be sufficiently severe or pervasive to create a working environment a reasonable person would find hostile or abusive is a crucial limitation that prevents sexual harassment law from being expanded into a “general civility code.” In other words, “the conduct must be extreme to be legally actionable.” Simple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to actionable changes in the terms and conditions of someone’s employment. True harassment cannot be occasional, sporadic or trivial; the plaintiff must show a “concerted pattern of harassment of a repeated routine or generalized nature.” For example, the court stated that the utterance of an epithet that hurts the feelings of an employee does not sufficiently affect the conditions of employment so as to qualify as harassment or discrimination.

Also, Ms. Jones was not able to produce evidence that the “hostile” treatment was due to her race or gender. In fact, during her deposition, Ms. Jones testified that she did not know whether these acts were prompted by her race or gender. The court determined that Ms. Jones did not have a claim of sexual harassment or gender discrimination because she was unable to produce evidence of conditions that were sufficiently severe or pervasive to constitute actionable harassment. Rather, her complaints were “akin to being a collection of isolated and objectively non-discriminatory events.” The employer was able to show that the disciplinary action and other employment decisions were made for legitimate, nondiscriminatory reasons. Lastly, Ms. Jones did not present any evidence showing that she had suffered an adverse change in the terms and conditions of her employment (e.g., a loss/reduction in pay or benefits, demotion, etc.).

Without more facts it is difficult to tell whether or not you have a complaint of illegal sexual harassment. If you are simply bothered by the lack of women in your department, it is unlikely that you are truly experiencing a “hostile” work environment as that term is defined by law. If, however, there is a pattern of discrimination in your company, and/or you have suffered sufficiently serious and adverse employment actions because of your gender, it is possible that you could have an actionable claim.

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