Employment Law Blog

Something in the Air: Is a Negative Atmosphere a Hostile Environment?

Employers sometimes still grapple with the notion of what conduct supports a claim of a hostile work environment. The easy answer is generally the negative atmosphere must be sufficiently severe and pervasive, but it also must rise to the level of actual harassment of an employee or group of employees on the basis of a protected characteristic. In other words, negative workplace interactions alone aren’t enough to give rise to a hostile work environment claim without more. Recent decisions underscore this distinction enough to give employers at least a little relief over the kinds of employee conflicts that occur on a daily basis.

Leath v. Collins

In this Sixth Circuit Court of Appeals decision, Leath, a Black woman employed as a criminal investigator for the Department of Veterans Affairs, reported hostility from three men, two of whom were white and had opposed her hire as an external candidate. She reported hostility from all three after butting heads with them, such as eye rolls, demeanor, and conversation shifts when she entered the room. HR conducted an investigation, but determined that this was just interpersonal friction. After two more complaints by Leath over the conduct of others and two more HR investigations, Leath finally resigned. She sued the VA, alleging hostile work environment, race and gender discrimination, and constructive discharge.

According to the Sixth Circuit, upholding the dismissal of her claim, intrapersonal conflicts and  “atmospheric observations” did not support a hostile work environment:  snickering, isolation, ostracism, and social/professional exclusion without evidence related that they were based on her gender or her race did not rise to the level of actionable harassment.

Jones v. Fluor

Jason Jones, a Black man, worked for Fluor Facility & Plant Services at Fluor’s client site, Logan Aluminum, in Kentucky. Jones alleged that white coworkers subjected him to repeated racial harassment and multiple instances of racist language and stereotyping. The supervisor addressed the individuals involved and they were instructed to stop, which they did.  However, Jones was ostracized, including coworkers refusing to speak with him, leaving rooms when he entered, and excluding him from shared rides.

Later on, after Jones reported having thoughts of harming Logan Aluminum employees alarming enough that a treatment facility contacted the sheriff's office, Logan Aluminum banned him from the site, and he was subsequently terminated.

In Jones’ discrimination and retaliation suit, a couple factors weighed in favor of the employer. First, although other employees had created a racially discriminatory environment, that environment was deconstructed after the employer found out, conducted an investigation, and then took action to prevent it from recurring. Second, although Jones was ultimately fired, the threat of workplace violence will always be a legitimate reason for terminating an employment relationship.

Atmospheric Conditions

The worthwhile takeaway for employers is that not every interpersonal conflict is tantamount to harassment or discrimination, even if the hostility in the workplace is tangible. The classic case of this is when an employee believed she was being harassed by her boss because he treated her so poorly, but it didn’t rise to the level of a hostile work environment for her as a member of a protected class because the boss was just a jerk to EVERYBODY. The hostility and environment must demonstrably grow out of aversion to the subject’s protected characteristic, such as race or gender.

Intervene Early and Often

What may have proven pivotal in defeating these claims is that employers took the underlying concerns by these employees seriously enough to look into and document these instances of interpersonal conflict. This is a drum that employment attorneys never tire of beating: many workplace claims can be mitigated or even avoided altogether by early employer intervention. An excellent strategy to minimize liability is to act upon and investigate reports of workplace concerns, rather than brush them aside. Not only will this tactic correct numerous behaviors and prevent several claims, it can also defeat claims should they blossom into trials, as they did in these cases.

Employers and workplaces aren’t required to be perfect and positive at all times. What they need to be is free from harassment and discrimination based on protected classes, but courts will view employer efforts to curb workplace hostility with deference. If you’re worried that interpersonal conflicts in your workplace may cross the line, reach out to a McBrayer Employment Law attorney before the work environment becomes too hostile.

Cynthia L. Effinger, Member with McBrayer, is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice focuses on drafting employment manuals and policies, as well as addressing social media, wage and hour, non-compete agreements, and workplace discrimination. Ms. Effinger can be reached at ceffinger@mcbrayerfirm.com or (502) 327-5400.

Services may be performed by others. This article does not constitute legal advice.