How to Prove a Hostile Work Environment


Title VII of the Civil Rights Act prohibits harassment in the workplace on the basis of race, color, religion, national origin, and sex. Other federal, state, and local laws take that prohibition further by outlawing harassment on the basis of disability, pregnancy, age (40 or older), genetics, sexual orientation, and gender identity. Employers who participate in or implicitly allow harassment in the workplace may be subject to formal investigations, fines, litigation, and paying damages to harassed employees.

When an employee sues his or her employer for harassment under a protected characteristic, the employee will need to offer evidence to substantiate the harassment claim, perhaps in the form of recorded conversations, emails, or witness statements. That alone isn’t enough to win the lawsuit, though. In addition to proving the harassment took place, the employee will also need to prove that the harassment created a hostile work environment.

What qualifies as a hostile work environment?

Generally speaking, a workplace is considered a hostile work environment when a reasonable person would find the atmosphere offensive, hostile, or intimidating. Under that definition, petty insults and minor annoyances wouldn’t qualify. The hostile work environment must also be continuous, so isolated incidents typically don’t qualify unless they are egregiously severe.

In court, proving that a case qualifies as a hostile work environment isn’t that easy. To successfully win over the judge and the jury, you’ll need to prove 5 important factors:

You are the victim of discrimination

Specifically, you are the victim of harassment based on discrimination of a protected characteristic such as race, color, religion, national origin, sex, disability, pregnancy, age (40 or older), genetics, sexual orientation, or gender identity. If your coworkers harass you for something else like your haircut or clothing, unfortunately that doesn’t qualify for protection under federal, state, or local laws.

The harassment is severe, offensive, and/or abusive

This is often the most difficult aspect to prove in a hostile work environment case. Harassment in the workplace is only illegal if the remarks are verbally abusive or severely offensive. The judge over your case will probably ask if a reasonable person in your situation be severely impacted or seriously offended. If the court determines that you were overly sensitive, and the severity of the circumstances is questionable, your case will likely be dismissed.

The harassment is ongoing and/or pervasive

This requirement compounds on the last one, as both consider the severity of the situation. Generally speaking, singular, isolated incidents aren’t considered a hostile work environment. The court will want to see a history of offensive, severe, or abusive behavior. The only exception to that rule would be when there is physical assault, in which case that is considered pervasive and wouldn’t require a documented history to qualify as a hostile work environment.

The harassment prohibits you from doing your job

This is the capstone that can make or break a hostile work environment case. To be considered a hostile work environment, the activity in question must directly get in the way of your ability to perform your job. The court will consider what job functions have been hindered, and the judge may consider how the situation has impacted your career progression. If you have been unreasonably passed over for promotions, assignments, or career-advancing rotations due to the discriminatory harassment, you will have a strong case for a hostile work environment.

Your employer has failed to intervene and address the harassment

Before filing a lawsuit against your employer, the company should have the opportunity to investigate your claim and resolve the issue internally. It’s only when an employer fails or refuses to resolve the issue that the employer becomes liable for creating a hostile work environment.

How do you prove a hostile work environment?

If you believe that you are being harassed at work for a protected characteristic and the harassment has led to a hostile work environment, the first step is to speak with an attorney. A reliable, experienced employment law attorney should be able to advise you on how to gather evidence, file a complaint with the appropriate government enforcement agency, and ultimately pursue a civil case against the employer. As you’re meeting with your attorney, he or she will likely advise you to collect the following evidence to successfully prove your case for a hostile work environment:

Document the harassment and relevant conversations

Any time you are harassed or experience the negative effects of a hostile work environment, write down a first-person account of what happens. These notes may not qualify as solid proof, but they make it much easier to track the harassment that you are enduring at work and create a timeline of events.

Preserve all formal communications

Make or save copies of any communications that contain harassing language, including voicemails, letters, memos, text messages, and emails. Keep in mind that these communications don’t just need to be from your workplace—if someone has harassed you at home or outside of work, these communications are relevant, too. If you have reported harassment to human resources, be sure to save that communication as well.

Identify and approach potential witnesses

If other coworkers or bystanders witness you being harassed, you should quietly approach these individuals and ask if they’d be willing to testify on your behalf. Having at least one reliable witness can be a significant boon to your case.

Retain a copy of your personnel file

Documents such as performance reviews, customer feedback, and applications for promotions or transfers are also beneficial in a hostile work environment case. If your manager claims that you’re a deplorable employee but your performance reviews and client feedback say otherwise, the court will be much more inclined to take your side. Also, if the hostile work environment has negatively impacted your career progression, your personnel file is the best evidence to prove this.

Obtain a copy of company policies

An employer’s official policies can take the form of an employee handbook, company manual, employment contract, or even formal memos issued by policymakers in the company. One of the biggest red flags in a hostile work environment case is when an employer disregards company policy and fails to properly investigate your claim internally, and if you have official evidence to prove that the HR representative or manager didn’t follow the rules, you’ll have a much stronger case that you were singled out.

Need Help With An Employment Law Issue?

The state of Arizona is a great place to live and work, but knowing the employment laws will help you a lot. Whether you are a newcomer to the state or a lifelong resident, understanding your workplace protections is good for your career, and the more you know, the better.

Employment law issues can cause extreme distress and can affect productivity on the job. If you are being harassed at work, or dealing with any other employment issue, consider talking to our AZ employment

Call our Employment Law team at (480) 464-1111 to discuss your case today.

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