Human Resource Blog

How to Disprove a ‘hostile work enviroment’ claim in SD?

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Recently an employee had made it kown, although not through offical channels, that she would not be working at the company long term. Her manager has subsequently taken steps to ensure normal work flow and to minimize the impact of her departure. The employee became very unhappy and stated to her manager that she was not gone yet and she may perhaps not even be leaving the company. The manager came to me to discuss this and we arranged a meeting with the employee with the hopes of getting a clear understanding of the situation. During our meeting the employee stated that she has the possibility of suing the company based on ‘a hostile work enviroment’. The back story to this claim is as follows: One of our Sr. VP is married to this employee, and they are going through a divorce. The rumor is that there was an affair between him and another employee 2 years ago. None of these events has impact his job performance and he has been with the company for 30+ years. The alleged ‘other woman’ has also not shown a decline in her productivity either. We have been a compassionate employer and have allowed this employee a flexible work schedule and days allowed to work remotely.
What do we need to do to protect ourselves from her claim?

Thank you.

Actually, this employee probably has a stronger case for sex discrimination than for a hostile work environment. The relevant laws are the federal discrimination statutes.

 

But first, we interrupt this answer for a brief commercial. Situations like this – where the Senior VP has probably had an affair with another employee, and is now divorcing his wife, who is also an employee – are exactly why many companies prohibit nepotism (the employment of relatives) and interoffice affairs. If only one of the three employee’s performance suffers, you’re very lucky.

A “hostile work environment” is one of the least understood concepts in the HR world. Basically, employees are subjected to a “hostile work environment” when they are the targets of verbal or physical abuse, or offensive behavior, based on their membership in a protected group. As you know, employment decisions cannot be made based on race, color, religion, sex, national origin, pregnancy or age (over 40.)

A black firefighter who is served spaghetti mixed with dog poop at the firehouse, is subjected to a hostile work environment. Nooses hung from his locker, racial epithets scrawled on the walls, or KKK material in the employee breakroom would also constitute a hostile work environment based on race.

A female firefighter who received pictures of naked women in her inbox, every day for 6 months, is being subjected to a hostile work environment based on sex.

You may think that these examples are far-fetched and nothing like this could occur in the modern workplace. But, all of these examples are drawn from EEOC cases settled in the past 18 months.

The major point is that these employees are the target of offensive behavior, because they are “different” from their coworkers. And not just different in any way…different in a way that is protected under federal discrimination law.  Essentially, their coworkers are trying to get rid of the employees by taking offensive actions, and the employer is turning a blind eye to the problem.

In most cases, in order to prove a hostile work environment, the EEOC must show that a) Adverse actions were taken by the employer or by employees and b) The employer knew of these actions and failed to correct them.

If the female firefighter complained about the pictures of naked women in her inbox after the first week, and the employer put a stop to it, that would be an effective defense against a “hostile work environment.”

However, in this case, the HR department should be more concerned about a discrimination suit, because the adverse actions seem to be coming from the manager or employer.

Here’s how a smart lawyer would present this case: “Two employees worked for the same company. When they decided to divorce, the male employee was treated the same as usual, but the female’s employee’s job duties were changed, in an effort to force her to leave the company.” It sounds pretty convincing, doesn’t it?

 It appears that the employer is making decisions about work assignments, training, promotion or working conditions based on sex.  And that’s illegal discrimination.

Some of the accommodations that the manager has made out of compassion, such as allowing the woman to work from home, could actually be seen as attempts to keep her away from the workplace or ostracize her.

It’s natural for the HR department to back the manager, but it’s not always wise. The employer is trying to rationalize this action by saying, “Her manager has subsequently taken steps to ensure normal work flow and minimize the impact of her departure.” That’s just code for “We changed her work responsibilities (and possibly status) for no good reason” or “We hired her replacement while she was still working here.” Neither is a good plan in this situation and either could be considered illegal discrimination.

People say many things when they are distraught over a divorce. It appears that this woman vented with a coworker, and that person has betrayed her. But making HR decisions based on rumor and innuendo is never a good idea.

Have you considered that the “reports” that the employee is leaving may be untrue? Or that she considered it but has changed her mind? The best way to handle this situation would probably have been for the manager to sit down and ask the employee what her plans were, before taking any actions.

The next course of action is clear. This employee has indicated that she believes she is being subjected to a hostile work environment. The appropriate response is to treat her exactly like any other employee. If she is a drill press operator, she needs to be treated like other drill press operators. If she is a secretary, she needs to be treated like other secretaries. That includes having all the job duties and responsibilities that they do.

If some of the employee’s work duties, authority or working conditions have been changed, they need to be restored. Her manager also needs to be told that this person must be treated like anyone else with the same job, preferably in writing. That will go a long way towards disproving a hostile work environment or discrimination based on sex. The employer can legitimately say, “There was a problem but we took care of it as soon as it was brought to our attention.” In many cases, this is an effective defense against charges of discrimination or a hostile work environment.

The reality of business today is that employees often quit with little or no notice, and employers deal with it. Before the divorce, the company would have survived if one of these people had left the job. The smart thing to do is to wait until someone gives 2 weeks’ notice, or quits, and handle that problem when – and if — it arises.

This answer is for informational purposes only, and you may want to seek legal advice from an attorney on this case.