HOSTILE WORK ENVIRONMENT - IT'S MORE THAN HARASSMENT
Patterns, Risks, and Remedies

I.          Some Pertinent Legal History on Hostile Environment Theories.    

Title VII does not expressly mention either harassment or hostile work environment.  As the Supreme Court acknowledged in Meritor v. Vinson, and more recently in Vance v. Ball State Univ., the EEOC was in the forefront of developing the law establishing a claim under Title VII for hostile work environment.[1] The lead case was Rogers v. EEOC in 1971, where the Fifth Circuit recognized a claim for racially hostile work environment based on Title VII's prohibition against discrimination with respect to terms, conditions, and privileges of employment.[2]  In 1986, the Supreme Court similarly grounded a claim for sexual harassment on the "terms, conditions, or privileges" provision of Title VII.[3] 

One of the most important developments was the "totality of circumstances" standard articulated by the Supreme Court in Harris v. Forklift.[4]  "Within the totality of the circumstances, there is neither a threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim."[5]  Indeed, a single severe incident may be sufficient.[6] And in the totality of the circumstances, because each successive episode has its predecessors, the impact of the separate incidents may accumulate such that the work environment created may exceed the sum of the individual episodes.[7] Similarly, a series of events which standing alone would be innocuous may comprise a hostile environment when considered all together.[8] 

The "totality of circumstances" standard casts a wide net. For example, various courts have held that hostile work environment may be based on:

• Evidence of disparate treatment or retaliation.[9]
• Evidence of conduct not explicitly based on gender, race, etc., if the discriminatory basis may be inferred from the context.[10]
• Evidence of offensive or abusive conduct directed more frequently to the protected group.[11]
• Evidence of harassing conduct by non-employees.[12]
• Evidence of harassment directed at other employees, or harassment not personally observed.[13]
• Evidence the employer failed to investigate complaints of discrimination, or failed to take prompt remedial action.[14]
• Evidence of general work atmosphere.[15]

II.         Nomenclature Matters:  Think "Hostile Work Environment" Not Just "Harassment".

Although most hostile environment claims include harassing conduct, such as racial, ethnic, or sexual slurs, it is important to realize that this kind of conduct is usually only one component of the overall hostile work environment.  Indeed, for minority employees who are denied fair opportunities for advancement, subjected to more harsh discipline than their white co-workers, treated less favorably in other ways, and have no hope their employer will fix the problem, the ethnic slurs are often the least of their worries.  The bigger problem is that they go to work each day without any expectation of fair treatment.  Those who work in dangerous jobs, such as the oil rig workers in our cases against Patterson-UTI and Dart Energy, go to work in fear for their physical safety, and even their lives.  Obviously, the same is true for women and other protected groups.  In the words of the statute, employees in these environments have no expectation that they will enjoy the same "terms, conditions, and privileges of employment" as their colleagues. 

One of the most key and problematic aspects of a hostile work environment is the employer's retaliation against individuals who report or complain about the problem.  Imagine being a low-level female employee, and Bill, a fairly high-level executive, is demanding sexual favors from you.  He offers to promote you if have sex with him, but also, threatens your job if you don't.  You're afraid of him and afraid for your job.  You don't know who to trust.  Your coworker is more vocal, and complains at a staff meeting about Bill's inappropriate sexual comments to female employees. When your coworker is fired three days later, and Bill continues making rude comments to the women, you know it's hopeless to complain about what he's doing to you.  Now, you're not just scared, you're hopeless, and feel trapped.  If you're a single mom with kids to feed and clothe, if you're a victim of prior abuse, if you're on parole and in a work-release program, if you're an undocumented worker, if you're vulnerable and desperate for a job, you're likely to give in to Bill's demands.  Either way, your work environment has just become exponentially more hostile than it was before your coworker was fired, when you thought the company might do something about Bill.  There's a similar effect if the employer doesn't actively retaliate, but just does nothing in response to the complaints.  Then, the victims may be slightly less fearful of losing their jobs if they complain, but they are still both fearful of the harassment, and hopeless that there is a solution.  It is the epitome of a hostile work environment.

Because the EEOC is the agency charged with enforcement of these statutes, and because we are and should be leading the way, the nomenclature we use is important.  If we characterize the subject as "harassment," we unduly narrow the discussion.  Some people consider the terms interchangeable, and thus, will contemplate and discuss hostile environment, even if the designated topic is "harassment".  But others will not.  The EEOC's discussion topic should be "hostile work environment," and should take this opportunity to emphasize the numerous and varied kinds of unequal treatment which contributes to a hostile work environment, and that the kind of conduct we usually think of as "harassment" is usually only a component of the larger hostile work environment.  This is particularly significant in discussing these issues with employers because individual harassers are often easy to discount as rogue employees.  But the other components of the hostile environment more often result from the company's official acts or omissions in (a) making and reviewing employment decisions; (b) conducting prompt, thorough, and fair investigations into all complaints of discrimination; and (c) taking prompt and appropriate remedial steps.  These are the actions, or inactions, most likely to result in liability for the employer, and they are the official actions, or inactions, which make the environment most hostile and intolerable for the affected employees. 

III.        Today's Areas of Inquiry. 

For today's presentation, I was asked to specifically address four areas:  (a) particular industries where hostile environments seem prevalent; (b) particular risk factors; (c) steps the EEOC can take to help reduce the incidence of hostile work environments; and (d) steps employers and other entities can take to help reduce the incidence of hostile work environments.  I address each below.   

A.     Problem Industries

In my experience, hostile environment claims are most common in the following industries:

1. Restaurants  - these usually involve sex harassment and other disparate treatment of female employees. 
2. Oil and Gas Drilling Rigs - these have been race/national origin hostile environment cases.
3. Car Dealerships - these have been both sex and race/national origin cases, with a high incidence of same-sex harassment of males.
4. Agricultural workers - these have involved sex harassment and other disparate treatment of female employees.
5. Private Prisons - these have involved sex harassment and other disparate treatment of female employees.

B.     Common Risk Factors

1. Male-dominated workplaces (oil & gas rigs, car sales, private prisons, commercial kitchens).   In fairness, there may be similar problems in female-dominated workplaces, but I have not seen any of those cases.  By contrast, I have had a number of cases involving either sex or race/ethnic harassment, and nearly all of these were in male-dominated workplaces. 
2. Vulnerable workers (undocumented workers, threatened with deportation; women on parole and in a work-release program, threatened with re-incarceration; prior abuse victims; employees in small rural communities with limited employment opportunities).  On this point, it is important to remember that harassers are usually serial predators; they seek out and exploit the most vulnerable people.  Occasionally, a sexual harassment case will result from one person's romantic "crush" on another, so that the harassment is focused on a single person.  Contrary to what many believe, however, this is not the usual model, and is, in fact, quite rare.  In the nearly 27 years I have been litigating employment cases, I recall only one such case.  The usual model is a serial predator.  
3. Lack of employer training, investigation, and remedial steps.  Where employers fail to train employees and managers about hostile work environment and workplace harassment, then employees are not educated or informed about common kinds of conduct which are not permitted, and supervisors are not trained on either what kind of conduct is prohibited or what they are supposed to do when they see it.  Where employers don't take employee complaints seriously, and don't investigate or take prompt remedial steps, then the employer tacitly condones the inappropriate conduct.  As a result, employees inclined to engage in such conduct feel they can do so freely, and as discussed above, for the victimized employees, the environment is made exponentially more hostile when victims know there is no hope the employer will remedy the problem. 

C.     Suggested Actions for the EEOC

1. Outreach to High Schools - In my view, there should be a much more comprehensive effort to get annual training in every public high school in the country.  Students who are about to be in their first-ever work situations need to be informed about (a) their rights to work in an environment free from harassment, intimidation, and/or discrimination, based on race, color, national origin, sex (including sexual orientation and transgender status), disability, and age (over 40 - though this is not really their problem); (b) what conduct is not permitted in the workplace (which may differ somewhat from what is acceptable at school); and (c) what they should do when they see or are subjected to any conduct they believe may be prohibited discrimination or harassment.  If we are unable do this with live trainers, the EEOC should develop a video or computer model and textbook (preferably electronic) which can be used by high school teachers, and support this in-school training with train-the-trainer programs to support the teachers.
2. Additional training for Investigators on how to interview abuse victims:  Gleaning the facts in these cases does not happen in a one-hour intake interview.  It is a long and slow process, more akin to peeling an onion (tears included).  We have learned from a psychologist providing expert testimony in such cases that our usual interview process will often actual interfere with getting the story.  The better method is to allow the victim to tell the entire story in his or her own narrative, in the order that makes sense to the victim, without being interrupted for questions.  The Investigator should listen and take notes, in order to ask the necessary follow-up questions later.  Much of what the person says may seem irrelevant or inconsequential to the Investigator, but those details that seem unnecessary to us, are critical in the mind of the victim and if the Investigator tries to sidestep or shortcut around them, the victim will not feel supported or gain the confidence to tell the whole story. Indeed, it may take more than one interview session to gain the person's confidence to disclose the most disturbing aspects of the harassment.  Also, there is substantial study on why harassment victims fail to report.  Although a victim's failure to report may be significant in determining employer liability, it is a common misperception that if the employee fails to complain, he or she cannot prevail.  That is not the law, and charging parties should never be counseled out of filing charges on this basis.          
3. Continued industry-focused litigation, and broad publicity on these cases:  Where we have focused our litigation in particular industries, as the Phoenix District has done in both the agricultural and oil and gas industries, we believe we have had an impact in those industries.  This more widespread effect, however, depends substantially on the breadth of publicity.  Besides the usual broadly- published press release, the EEOC should more aggressively seek out other opportunities to publish these cases.  A major factor in changing the employer conduct is the potential embarrassment and negative publicity that flows from a wider and more public discussion of the actual events in the workplace.  These cases often entail horror-story facts that would put Stephen King to shame.  With the 24-hour news cycle on cable TV, we should be able to find talk shows willing to devote air time to a panel of victims who are willing to talk about what happened to them in the workplace, together with an EEOC attorney to explain what people can do if they are subjected to similar kinds of conduct at work.
4. Carefully and thoroughly study the effects of negotiated equitable relief:  In our negotiated consent decrees, settlement agreements, and conciliation agreements, we routinely seek certain kinds of relief, such as training, posting, requiring EEO compliance as a component of manager evaluation, modified EEO policies, reporting on complaints of discrimination, monitoring compliance by a designated employee of the company, by EEOC staff, and/or by an outside EEO professional.  There has been some limited study about the effectiveness of some of these requirements; we need more study.  It would be helpful to know which provisions are most effective, and what other relief we could seek that would further the EEOC's mission.
5. Invite input from experts who have studied or treated victims of harassment.  There are a number of university professors, psychiatrists, and psychologists with expertise in the area of workplace harassment.  The EEOC should seek input from such experts, who may have additional ideas about what the EEOC can do to address the particular problem of discriminatory hostile work environments.   
6. Additional human resources dedicated to monitoring compliance with negotiated agreements:  Under the current staffing, unless an agreement provides for monitoring by an outside party, the people who negotiated the settlement are responsible for the monitoring - the lawyers who negotiated settlement of the litigation, aided by the paralegal assigned to the case, or the investigator who negotiated the conciliation agreement.  Unfortunately, however, by the time the reporting begins six months or a year after the settlement, the lawyers, paralegals, and investigators are all embroiled in new cases.  Our case loads are such that we always have more work on our plates than we have time to do.  As a result, compliance monitoring on the previously negotiated deals, does not get the attention it deserves.  Unless this is someone's primary responsibility, it will always get short shrift.
7. Talk to employers about the cost/benefit analysis:  Private employers are profit driven.  The EEOC should talk about the costs of workplace harassment and hostile work environments - the victims are less productive because they are unhappy, fearful, and often going the long way around to just avoid contact with the harassers, and the harassers are wasting time engaging in conduct that is not only not productive, it is counter-productive.  And the risk of expensive litigation is not insubstantial.  On the other hand, the costs of training and conducting thorough investigations pays off with employees who are more satisfied in their jobs and more productive.  The risk of litigation is reduced, and both the training and investigations will substantially enhance the employer's likelihood of success when litigation occurs.  

D.     Suggestions for Employers

1. Hire women into male-dominated workplaces.  Because so many of these cases come from male-dominated workplaces, it seems that hiring more women in these workplaces would help.  In my own experience, men and women both just behave more civilly when people of both genders are present.
2. Aggressively train first-level supervisors to both identify improper conduct and take on-the-spot action.  First-level supervisors are employers' greatest weakness because they are the most likely to know about the problems, but are often incentivized not to report it or take remedial steps.  These folks have often been promoted from the ranks and feel more loyalty to the people they supervise than to the company.  But they are the company's agents, and the supervisor's knowledge will likely be imputed to the company.  So they need to be vigorously trained on their role as an agent of the company. 
   
   And importantly, one of the most effective means to end inappropriate workplace comment or conduct is on-the-spot action by that first-level supervisor.  For a supervisor to merely chastise a worker in the presence of the other crew members sends a powerful message to everyone present - it says "I will not tolerate that conduct - not from this person who said it, and not from any of you."  It's a memorable scene that every person present will remember.  And it's the kind of remedial action that can quickly put a stop to potentially harassing conduct, before it becomes sufficiently severe or pervasive to be actionable.
3. Beef up the investigation process.  Whoever is responsible for investigating employee complaints of discrimination needs to be well-trained on how to do prompt, thorough, and fair investigations.  These need to be a genuine and sincere effort to discover the actual facts, not to build a defense, which unfortunately, is what many employer investigators see as their role.  The employer needs to give the investigator authority to do a thorough investigation and make an honest recommendation.  And part of the investigation is to keep the complaining employee in the loop.  If a complainant is not advised of the progress and outcome, he believes his complaint was ignored, which is what he tells his colleagues who are then discouraged from complaining.  It may not be necessary or appropriate to tell the complainant the specific details of any disciplinary action against another employee, but the complainant needs to be informed that the investigation is ongoing, when it is completed, and enough information about the remedial measures for the complainant to know that such measure have been taken. 
4. Prompt and strong disciplinary action for violators.  When some inappropriate conduct is found, there needs to be prompt and adequate disciplinary action.  The violator needs to know that he or she is being disciplined because of the inappropriate discriminatory and harassing conduct.  In many cases, if the harasser is disciplined at all, it is on some basis other than discrimination or harassment.  For example, a sexual predator may get disciplined for violating the company's fraternization policy, rather than for violating the policy against harassment or discrimination.  This sidestepping of the discrimination aspect is inadequate to inform the violator of his offense, and it is unlikely to help the employer establish a Faragher defense.
   
   Even assuming the discipline is not made public, these disciplinary actions do not stay private.  If an offending employee is absent for a 3-day suspension, that sends a powerful message to his co-workers.  And although the employer may not disclose the discipline, the disciplined employee will likely tell someone, and word will get around.  When the employer actually demonstrates that it takes these matters seriously by conducting real investigations and imposing strong discipline, the employees will know that the policy is not just a piece of paper that can be ignored.     
5. Encourage employees to report what they think may be inappropriate conduct.  The employer can't fix what it doesn't know about.  And if inappropriate conduct is reported early, the employer can stop it before it becomes sufficiently severe or pervasive to be actionable.  Thus, the employer should actually want to know every complaint, no matter how minor, and even from the serial complainers who complain about everything.  Unfortunately, many employers discourage employee reporting, rather than encouraging it.  This is done in a number of ways, one of the worst being policy statements warning that people will be disciplined for reporting events that prove to be unfounded.  And employees are discouraged from reporting if supervisors are informed about supposedly anonymous hotline complaints, and then retaliate against the complainants.  And employees are discouraged by HR staff who don't take the complaints seriously.  And employees are discouraged from a corporate culture against reporting.  The employer needs to work aggressively to actually encourage reporting by its published policies, by its statements to employees in meetings to explain the reporting process, by sincerely thanking employees for reporting, by keeping them in the loop on the investigation, and most importantly, by taking every complaint seriously.

E.     Suggested actions for other entities

1. Educational forums for constituency groups:  Advocacy groups can help by educating their constituents about what is prohibited workplace harassment or discrimination, the employees' rights to work in environments that are free from discrimination and harassment, and how to exercise their rights effectively.  The EEOC could aid in this process by developing training materials that advocacy groups can use to train their constituents, and by providing EEOC staff to help train. 
2. Academic study:   Educational institutions can help by providing additional study of the conditions which contribute to or foster the development of hostile work environments, and the kinds of actions by employers and the EEOC that can help to deter or stifle these environments.