Uncivil Managers May Not Be Breaking the Law but May Be Unwelcome

Knowing what’s a hostile work environment and what isn’t can be the difference between launching a full-scale investigation and moving a bad manager out of an organization versus coaching them on how to be more civil.
Don’t rush to investigate everything employees call a hostile work environment because often, they don’t understand the full meaning of that narrow legal term, said James McDonald Jr., SHRM-SCP, an attorney with Fisher & Phillips in Irvine, Calif., and Tampa, Fla.

Speaking at the SHRM Annual Conference & Expo 2024 (SHRM24) on June 24, McDonald distinguished between violations of the law and violations of organizational policies. “It’s not illegal conduct to be a jerk, but it drives off good people,” McDonald said.

Erin Brainard, an HR manager for Mayer Brown law firm in New York City, said she was attending the session to get tips on resetting expectations for workers across generations in a fast-paced environment.

A ‘Hostile Working Environment’

A “hostile working environment” is a legal term that has a specific definition, McDonald explained. In Meritor Savings Bank v. Vinson (1986), the U.S. Supreme Court defined two types of sexual harassment: quid pro quo and hostile environment.

The court said a hostile work environment exists when an employee is subjected to unwelcome harassment that is sufficiently severe or pervasive to alter their working conditions and create an abusive working environment.

There are two key requirements for a violation of the law, McDonald noted. First, the conduct must be severe or pervasive. Second, it must be based on a protected classification, such as race, sex, age, national origin, disability, religion, or sexual orientation.

As the 4th U.S. Circuit Court of Appeals said in EEOC v. Sunbelt Rentals Inc. (4th Cir. 2008), “Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard. Some rolling with the punches is a fact of workplace life.”

That said, McDonald said he’s not a fan of the so-called “equal opportunity jerk” defense—when a manager or worker is abusive to all employees, not just certain ones—adding that courts don’t like it, either.

Courts hold managers to much higher standards of conduct than other employees. Employers have no liability for a worker’s inappropriate comments unless the employer knew or should have known about it and failed to take action, he said.

Be alert for language or conduct that is not overtly insulting, but that suggests a bias based on protected classifications such as sex, age, ethnicity, or religion, he said. A manager need not be a racist or a bigot to violate company policy or the law. Well-intentioned language or conduct might still exhibit a subtle bias that can make employees think they are not on a level playing field, he said.

What’s Not a Hostile Work Environment

Court decisions show some common themes regarding where there was found to be no hostile work environment:

• Boorish and inappropriate behavior will not likely qualify as a hostile work environment unless it happens multiple times and has a nexus to a protected classification.
• A limited number of insults based on protected classifications likely will not qualify.
• Use of profanity will not qualify, especially where profanity does not include racial or ethnic terms.
• Seductive looks and clumsy attempts at flirtation will not qualify if limited in number and not involving inappropriate touching of intimate areas.

“I’m not saying any of these management techniques are good ones,” McDonald cautioned. He added that he was just “distinguishing between terrible management and illegal.”

Training

Employers that conduct employee harassment training should include some material regarding what is and is not a hostile working environment, McDonald said.

He recommended that they note that an unpleasant boss, gossipy or unfriendly co-workers, or difficult customers typically do not amount to a hostile working environment under the law.

If employees believe they can apply a loose definition of the term hostile work environment to challenge management action they dislike, they will do so often, McDonald said. If they do not, they will not, he added.