Unlawful Hostile Work Environments and the Importance of Context

Updated: Jul 15

A woman removing a man's hand from her behind.

The EEOC's updated enforcement guidance takes an expansive view of what constitutes an unlawful hostile work environment under federal anti-discrimination laws. A hostile work environment is one that is subjectively abusive to the victim and would be objectively offensive to a reasonable person in the victim's position. The guidance emphasizes that context is crucial in evaluating whether harassing conduct is severe or pervasive enough to create a hostile work environment.

Severity and Pervasiveness

Harassment must be severe or pervasive to be actionable, but that determination depends heavily on circumstances. The more severe the conduct, the less frequently it needs to occur, and vice versa. A single incident can suffice if it is egregious enough, such as:

Sexual assault
Physical violence or threats
Supervisor's use of the N-word toward a Black subordinate
Quid pro quo sexual harassment (e.g. demanding sexual favors for job benefits)
Display of hateful symbols like nooses or swastikas

But even less severe behaviors like sexual jokes, gender-based insults, or mocking older workers can become illegal when frequently repeated over time. Courts assess the cumulative effect and pattern of misconduct in light of the specific work environment.

Power Dynamics and Relationships

Context includes the power dynamics and relationships involved. Harassment by a supervisor is inherently more threatening than by a coworker at the same level. And harassment takes on a heightened severity when the target is particularly vulnerable, such as:

Teenagers harassed by much older adults
Undocumented immigrants at risk of deportation threats
Domestic violence survivors in precarious living situations

The guidance also notes harassment can be exacerbated when it occurs in front of the victim's subordinates, clients or colleagues due to the added humiliation. At the same time, facing harassment alone with the perpetrator in an isolated environment can make it more threatening as well.

Identity-Based Perspectives

The EEOC emphasizes harassment must be evaluated from the perspective of a reasonable person sharing the victim's protected characteristics, such as race, sex, or age. Conduct that members of a privileged group might brush off can be oppressive to someone who deals with systemic inequality. For example:

Sexual come-ons that might flatter a man could be threatening to a woman.
Jokes about national origin that seem innocuous to citizens can menace immigrants.
Stereotypical remarks about aging may especially humiliate older workers fearing obsolescence.

Coded Language and Stereotyping

The guidance recognizes that actionable harassment often operates through coded language and allusions tied to racist, sexist or other biases. Slurs, epithets and dehumanizing remarks (like comparing minorities to animals) are obvious examples. But more subtle digs relying on stereotypes can also contribute to a hostile environment, like:

Saying an older employee should retire to make way for "fresh blood"
Suggesting mothers should stay home with kids instead of seeking promotions
Expressing disgust at transgender people using bathrooms matching their identity

When these comments are viewed in the broader context of discrimination that group faces in society, their harassing nature becomes clear. The EEOC rejects outdated "sticks and stones" notions minimizing psychological abuse.

No Crude Environment Defense

Importantly, the guidance repudiates recurring employer defenses that harassing conduct should get a pass because a workplace has always been "crude" or the misconduct conforms to prevailing culture. Normalizing abuse does not make it any less illegal.

Takeaways

In spotlighting these contextual nuances, the EEOC is prodding employers and courts to take a more holistic view of how workplace harassment actually operates - often through a thousand cuts rather than overt attacks, and in ways that exploit marginalized workers' vulnerabilities. While egregious cases still happen, the EEOC recognizes hostile environments commonly arise from an accretion of comments, exclusion and innuendo that reinforce inequality.

The upshot is that anti-harassment policies and training must become more sophisticated to account for these complex realities. Employers who stick with simplistic "no touching" rules will increasingly find themselves on the wrong side of the law. Proactively addressing workplace cultures that tolerate coded abuse is becoming a bottom-line necessity.