Hostile Work Environment

One of form of harassment in violation of federal and state anti-discrimination laws arises when an employer creates or allows a hostile work environment because of an employee’s race, sex, national origin, etc.

As a general rule, a work environment is “hostile” only when (a) the plaintiff experiences that work environment to be hostile and (b) a reasonable person in the plaintiff’s position would have believed that the workplace was hostile. The hostility must be the result of unwelcome comments or conduct by the employee’s supervisor(s) and/or any co-employees. Any such comments or conduct must be either severe, such as a sexual assault or the display of a noose in the workplace for an African-American employee, or must be pervasive. Occasional jokes in the workplace might not be sufficient.

Where the harassment comes from a co-employee, the plaintiff must show that the employer has failed to take reasonable steps to either stop the harassment or to punish the perpetrator.

When the harasser is a supervisor, the employer is automatically liable when the harassment is in the form of a “tangible employment action” – something that the supervisor was able to do only because s/he was a supervisor. When there has not been a tangible employment action, the employer is not liable if (a) it has taken reasonable care to prevent and correct promptly the harassment, and (b) the plaintiff has unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

All of the events that constitute a hostile work environment need not have taken place within 300 days (federal law) or six months (Colorado law) of the date on which the plaintiff filed a charge of employment discrimination. At least one of the events that constitute a hostile work environment, however, must have taken place within 300 days or six months before the charge was filed.