Faatimah Jafiq & Ty Hyderally, Esq.

April 10, 2025

A term that is often heard in employee trainings as something to avoid creating is “hostile work environment.” But what does that actually mean? A hostile work environment occurs when an employee endures discrimination, harassment, or retaliation at a level abusive enough that it becomes illegal under state and federal law. An off-color joke, mean boss, or casual use of a slur may not be enough to constitute a hostile work environment. The harassment usually needs to be based on a protected classification and be “severe or pervasive.”

Characteristics of a protected class include race, color, religion, national origin, sex/gender identity, age, disability[1], or genetic information. According to the EEOC, harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.[2]

There are three things to remember in a hostile work environment:

• The behavior exhibited is “severe” or “offensive”, enough that a reasonable person would find it abusive or intimidating to work there; and/or
• The behavior is constant, repeated, and unaddressed; and
• The behavior affects the employee’s ability to work by creating a toxic environment that causes the employee to feel emotional distress or unsafe, thus affecting their productivity.

The person committing the offensive conduct could be a supervisor, a coworker, or not even an employee at all. It is important to note that the person reporting the offensive conduct does not have to be the person harassed, but can be anyone who was affected by the offensive conduct.

The first step in proving a hostile work environment is to document the details. You may benefit greatly from consulting with an attorney who concentrates his/her practice in employment law BEFORE you send this document. Write down or record the date of the incident, who was present, who said what, and the specific details of the incident. Most companies have internal policies to handle offensive workplace conduct. After you have collected your evidence, you can present this information to your company’s Human Resources Office(r) and the people who may affect the terms and conditions of your employment. There is a principle of law known as the “cat’s paw theory of liability” to be mindful of.  Sending such a well drafted communication then places the burden on the company to investigate the incident/ces and administer any remedial/curative/disciplinary action as appropriate. It also creates a paper trail showing your efforts to address the issues internally. It is critical that you are careful with regard to what you write in the document, who you send it to, and when you send it.  Once again, consultation with an attorney before you send the document can be very helpful.

If the company finds no wrongdoing or refuses to take action after an internal complaint, there are other subsequent steps you can take.  You can escalate the complaint internally or make a complaint externally.  To file a complaint externally, you can file a complaint with the courts or consider filing a claim with the federal EEOC or the appropriate state agency.[3] You could also consult an lawyer concentrating in employment law for advice on your specific situation and guidance through the process of filing a claim.

In March 2025, the Division on Civil Rights (DCR) in New Jersey issued a Finding of Probable Cause alleging that a NJ business violated the Law Against Discrimination (LAD) by engaging in unlawful lending and employment discrimination.[4] The DCR investigation found that the business owner directed his staff not to conduct business with “Chinese, African, and Spanish” potential clients. The DCR also found that the business unlawfully retaliated against an employee who reported the business’ conduct to the DCR a year earlier. “No one should ever be subject to retaliation for filing a discrimination complaint. And no one should ever be subject to a hostile work environment based on race or national origin,” said Matthew Plankin, Esq., the NJ Attorney General.

If you have any questions regarding your rights as an employee, you should seek out an experienced attorney who concentrates in employment law. Our firm has been concentrating in employment law for over twenty-two (22) years!

En nuestra firma hablamos español. This blog is for informational purposes only. It does not constitute legal advice and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice regarding your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state or jurisdiction.

[1] Disability is defined broadly under the Americans with Disabilities Act (ADA). This includes physical or mental disabilities. Introduction to the ADA

[2] US Equal Employment Opportunity Commission. https://www.eeoc.gov/harassment

[3] New York Division of Human Rights Complaint: https://dhr.ny.gov/complaint
New Jersey Division on Civil Rights Complaint: https://www.njoag.gov/about/divisions-and-offices/division-on-civil-rights-home/division-on-civil-rights-file-a-complaint/

[4] “AG Platkin and Division on Civil Rights Announce Enforcement Action Against Advance Funding Partners/Same Day Funding for Lending and Employment Discrimination”, March 11, 2025, DCR Report