Have you ever had a job where, no matter how hard you tried, the boss mistreated you? You showed up early, you left late, you covered other employees’ shifts, you chipped in on projects, and regardless of how hard you worked the boss still treated you like garbage. And you noticed that the boss did not treat other employees this way. “What a racket!” you thought to yourself. “I’m being discriminated against! This is a hostile work environment!” you shouted to no one in particular.

Being treated poorly at work because your boss does not like you may not be a hostile work environment. It may be the “Worst. Job. Ever.” Your boss may have a horrible management style. Your boss may be an idiot. Your boss may be loud, obnoxious, abrasive, or just plain rude. But that does not create, legally speaking, a hostile work environment.

To create a hostile work environment that can withstand scrutiny in a court of law, you have to prove the boss treats you poorly at work or ignores your poor treatment by coworkers because you belong to a protected class of people. A protected class is based on a person’s race, color, religion, sex, national origin, age, physical or mental disability, or genetic information. It is not based on a clash of personalities.

Employment matters are covered by federal and state jurisdiction. This means that you can file your claim in either federal court under Title VII of the Civil Rights Act of 1964 or state court under the North Dakota Human Rights Act if your claim meets the criteria for one or the other. Generally speaking, North Dakota state law follows federal guidelines. There are some exceptions, but this article’s focus is only on the big picture.

A hostile work environment exists when a series of separate acts collectively constitute one unlawful employment practice. Hysjulien v. Hill Top Home of Comfort, Inc., 2013 ND 38, ¶ 18, 827 N.W.2d 533. This could include situations where an employee was continually harassed and disciplined more harshly than other employees because of the complaining employee’s race (National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)); where an employer was aware of the harassment of an employee by coworkers and refused to correct the action (Vance v. Ball State University, 133 S.Ct. 2434 (2013)); where a coworker repeatedly told the complaining employee that he needed to “find God” or he will go to hell (Winspear v. Community Development, Inc., 574 F.3d 604 (8th Cir. 2009)); or where an employee who had a metal plate in his head following an operation was consistently referred to by coworkers as “stupid” and “platehead” (Shaver v. Independent Stave Co., 350 F.3d 716 (8th Cir. 2003)).

To establish a prima facie case, which is legal-speak for “show enough evidence that you have a legitimate claim,” the employee complaining of the hostile work environment (known as the “Plaintiff”) must prove:

1. The employee belongs to a protected class.
2. The employee was subject to unwelcome harassment.
3. The harassment was based on the employee’s status in the protected class.
4. The harassment affected a term, condition, or privilege of employment.
5. The employer knew or should have known of the harassment and failed to take proper remedial action.

If the employee works at a job that uses an employee handbook or has a well-defined system for workplace complaints, the employee must follow the employer’s discipline policy first. The employer has to be given an opportunity to correct the harassment before the employee files a lawsuit.

Sexual Harassment

The most common claim of a hostile work environment is sexual harassment. Sexual harassment is a form of sex discrimination under Title VII and the North Dakota Human Rights Act. This may include sexual advances, requests for sexual favors, verbal or physical conduct of a sexual nature, physical aggression, or vulgar and offensive language that is intensely degrading or insulting. This does not include offhand comments or simple teasing. The harassment must be severe.

Using the criteria above, the Plaintiff in a sexual harassment case will have to make a prima facie case that shows:

1. The employee belongs to a protected class. The plaintiff, male or female, can allege sexual harassment by a supervisor or coworker. The offending party does not have to be a member of the opposite sex.
2. The employee was subject to unwelcome harassment. The harassing conduct was uninvited or offensive. The plaintiff must make it known to the offending party that the harassing conduct is unwelcome. If the plaintiff laughs at a coworker’s dirty joke, the conduct is not unwelcome.
3. The harassment was based on the employee’s status in the protected class. The plaintiff must be harassed because of the employee’s sex, not because the employee was the nearest available target for a boss tirade or because the employee wanted to wear sandals.
4. The harassment affected a term, condition, or privilege of employment. The work environment must be one that a “reasonable person” would find hostile. The conduct must be more than merely offensive. A plaintiff with a fragile ego or who takes matters too literally will not prevail.
5. The employer knew or should have known of the harassment and failed to take proper action. The plaintiff must report the harassment to a supervisor or human resource department. The employer cannot take corrective action to stop the harassment if the employer does not know it exists.

I am one of the employment law attorneys at SW&L. If you have questions about whether you are being discriminated against at work, call 701-297-2890 or send us an email below.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular issue or problem.

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