- A female employee repeatedly faces daily sexually charged comments, inappropriate propositions, and unwanted physical touching from her supervisor. When the employee complains, she is terminated shortly afterward, and the harasser continues working.
- A Black employee subjected to repeated derogatory racial comments from his boss, such as being called names, or said to speak in a certain way, or pointing out that people of his race are to be treated with suspicion when they frequent the business. There’s no formal complaint procedure the employee can follow and no formal HR department. The pervasive racism causes a toxic atmosphere, causing the employee to resign due to severe stress, anxiety and related health issues.
- An employee born in Somalia faces repeated, severe harassment from his manager and a group of coworkers related to is country of origin – insults related to his culture and religious customs. Despite repeated complaints, the harassment continues and the employee feels unsafe and psychologically targeted and eventually quits his job.
Unfortunately, all too many employees have experienced discrimination of one kind or another on the job, often making ‘going to work’ intolerable. The scenarios provided are not uncommon and may very well constitute a hostile work environment which is a specific type of unlawful harassment under federal statutes enforced by the U.S. Equal Employment Opportunity Commission (EEOC).
Harassment becomes unlawful (creating a hostile work environment) when:
1. The conduct is unwelcome; and
2. It is based on a protected characteristic such as sex or race; and
3. It is either:
A condition of continued employment (e.g., “go out with me or you’re fired”), or
Severe or pervasive enough to create a work environment that a reasonable person would find intimidating, hostile, or abusive.
Key Requirements (all must be met):
- Protected Characteristic Required: The harassment must be because of race, color, religion, sex (including sexual orientation, gender identity, pregnancy, childbirth, or related conditions), national origin, age (40 or older), disability, or genetic information (including family medical history). Retaliation for complaining about discrimination is also protected.
- Severe OR Pervasive: One extremely serious incident (e.g., physical sexual assault or a noose in a workspace) can qualify, or repeated milder conduct (e.g., daily racist jokes or slurs) over time. Petty annoyances, isolated offhand comments, or simple personality conflicts do not qualify.
- Pass Objective + Subjective Test: A reasonable person in the same situation would find the environment hostile and the victim actually experienced it as abusive.
- Conduct can come from supervisors, co-workers, or even third parties (customers/clients) if the employer knows or should know and fails to act.
Examples of qualifying conduct (when tied to a protected characteristic):
• Offensive jokes, slurs, epithets, or name-calling
• Physical assaults, threats, or intimidation
• Ridicule, mockery, insults, or put-downs
• Offensive objects, pictures, or graffiti
• Interference with work performance
Yes—it must relate to discrimination or harassment based on one of the protected characteristics listed above. Hostile work environment claims are a form of employment discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and others.
A claim of a hostile work environment must be related to discrimination or harassment based on a protected characteristic, however, violations related to pay or leave may may be related to discrimination.
- Wage-and-hour violations (Fair Labor Standards Act/FLSA — overtime, minimum wage, etc.) or disputes over pay/benefits are handled under separate laws. Being angry about unpaid overtime or denied raises does not create a hostile work environment claim unless the mistreatment is also because of a protected characteristic (e.g., only women are denied overtime).
- Leave issues (Family and Medical Leave Act/FMLA) are enforced by the Department of Labor. Denying FMLA leave, punishing someone for taking protected leave, or creating hostility around it is usually an FMLA interference or retaliation claim—not a hostile work environment claim under EEOC laws. However, overlap can occur if the leave request ties to a protected trait (e.g., pregnancy-related leave = sex discrimination, or medical leave for a disability).
In short, pure wage, benefits, or leave complaints are separate legal claims. They only become part of a hostile work environment if the underlying hostility is rooted in a protected characteristic, which is employment discrimination.
A hostile work environment claim typically develops when unwelcome conduct based on a protected trait escalates without being stopped:
1. Harassing behavior begins (jokes, comments, etc.).
2. The employee experiences it as abusive and it alters the terms/conditions of employment.
3. The employer (or supervisor) either participates, knows about it, or should know and fails to take prompt corrective action.
To pursue hostile work environment claim related to workplace discrimination:
- The first step is to report the issue to HR or a supervisor in writing referring to the company’s anti-harassment policy
- If nothing improves, contact an experienced employment law attorney to discuss next steps which will include filing a complaint with the EEOC and perhaps a federal lawsuit depending on the circumstances.
When you are experiencing a hostile work environment because of your age, your gender, or your religion, contact our Wisconsin employment discrimination attorneys at the law office of Alan C. Olson & Associates to discuss your legal rights at 262-785-9606.
