By: Jennifer Weitz, Esq. and Ty Hyderally, Esq.

As the Jon Gruden emails demonstrate so vividly, hate speech persists in many professional environments. However, the Gruden self-immolation also shows that such behavior has consequences. Whether one is the target of offensive behavior or has to endure it being directed towards others, laws at both the federal and state level aim to protect workers faced with harassment that creates a hostile work environment.

A hostile work environment is the result of conduct on the part of a supervisor, coworker, customer, or contractor that makes the workplace atmosphere intimidating, hostile or offensive. Conduct that may lead to a hostile work environment includes but is hardly limited to: discussing sexual activities; telling jokes that focus on race, gender, or other protected bases; displaying sexually suggestive pictures; using demeaning words or epithets; using indecent gestures; or using crude language.

For the conduct to be actionable, and not just obnoxious, it must be unwelcome and based on the intended target’s protected status. The conduct must also be of the sort that would be both offensive for the person affected AND objectively severe or pervasive enough to create a work environment that a reasonable person would find hostile or abusive. To determine whether an incident or pattern of harassing conduct is severe or pervasive, courts consider the following: the severity and the frequency of the conduct; whether the conduct was threatening or humiliating; whether the conduct unreasonably interfered with work performance; the effect on the intended target’s psychological well-being; and whether the harasser held a supervisory/or higher level position within the company. Each factor is considered, but no one factor is absolutely required.  Hostile work environment claims are measured on a case-by-case basis, with the facts of each situation used to gauge whether offensive conduct has crossed the line from unwelcome to unlawful.

Several federal laws govern hostile work environment claims, including Title VII of the Civil Rights Act of 1964 (for gender-based claims) and § 1981 of the Civil Rights Act of 1991 (for race-based claims). At the state level, both New York and New Jersey have comprehensive statutes to address hostile work environment complaints.

New Jersey’s Law Against Discrimination recognizes hostile work environments resulting both from racial harassment and from sexual harassment. Under the LAD, a plaintiff claiming a hostile work environment must first prove they belong to a protected class (the LAD recognizes many classes), and then show that the behavior in question: 1) would not have occurred but for the employee’s protected class, and it was 2) severe or pervasive enough to make a 3) reasonable person believe that 4) the conditions of employment are altered and the working environment is hostile or abusive.

The New York State Human Rights Law and the New York City Human Rights Law require slightly different proofs for a claim of hostile work environment. Under the state law, a plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive working environment. Under the city law, a plaintiff claiming a hostile work environment only has to show that they were treated less well than other employees because of the relevant characteristic. A plaintiff does not have to prove that the conduct complained of is severe or pervasive, but the alleged conduct must be greater than what a reasonable person experiencing discrimination would consider petty and trivial.

While the Jon Grudens of the professional world are hopefully few and far between, employees do not have to simply grimace and hope such conduct somehow evaporates. Complaints against a private employer may be filed with the U.S. Equal Employment Opportunity Commission at https://www.eeoc.gov/filing-charge-discrimination, in New Jersey at NJCivilRights.gov, and in New York at http://nownyc.org/service-fund/get-help/. All employees deserve a workplace free from discrimination.

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