Determining Hostile Work Environment: Is it Severe? Or Pervasive? Or Neither?

By Dan Gephart, January 17, 2024

Over the last several years, agencies have paid more particular attention to harassment, including the non-EEO kind. This has led to a greater general awareness of hostile work environment. Unfortunately, while more people are aware of HWE, there are way too many who don’t understand exactly what it is.

Much of the misunderstanding is on the part of employees who define the term “hostile” way too broadly, Ann Boehm wrote late last year. However, those who should know better are not immune to confusion when it comes to recognizing and addressing an actionable hostile work environment.

Most EEO and HR professionals can recognize verbal and physical behavior that is unwelcome, and most can discern if the conduct was based on the employee’s protected status. But confusion rears it head when discussion turns to the third part of the elements of proof – determining if the conduct was sufficiently severe or pervasive to alter the terms, conditions, and privileges of employment.

There is no simple rule or guideline for determining hostile work environment, as it often depends on the unique circumstances of each case. Here are five points to help you make the appropriate determination.

1. Remember that it’s severe or pervasive – not and.
2. This means a single incident, if severe enough, can create a hostile work environment.

• The EEOC found sufficient evidence to support a finding that a manager came up to the complainant while she was at her workstation, grabbed her around the waist, and kissed her on the neck. Trina C. v. USPS, App. No. 0120142617 (2016).
• A male coworker pushed the complainant’s hair back and stuck his tongue in her ear. Hayes v. USPS, No. 01954703 (1999).

3. On the flip side, a single incident that is not severe would not be an HWE. Here’s an example from a Supreme Court case:

An employee met with her male supervisor and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, “I hear making love to you is like making love to the Grand Canyon.”  The supervisor read the comment aloud, looked at the employee and stated, “I don’t know what that means.” The male employee then said, “Well, I’ll tell you later,” and both men chuckled. The Supreme Court ruled: “Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in employment terms and conditions.” Clark County School District v. Breeden, 532 U.S. 268 (2001).

4. However, non-severe conduct could create a hostile work environment if it is frequent or pervasive. Some of the actions in Gillespie v. McHugh, App. No. 0120080758 (2012), are not severe alone, but when viewed together, it’s another story. Over time, the supervisor:

• Told the complaint that she was not an expert on regulatory matters and that the districts didn’t come to her for advice.
• Gave the complainant a lower performance rating than she had received previously, and one lower than all other attorneys in her group.
• Told the complainant she was not qualified to be on the Chief Counsel’s Management Partners’ Group.
• Told the complainant she didn’t know how to brief people.
• Sent an email to a Regulatory Appeals Officer apologizing for inadvertently sending out a draft for others to review, while blaming the complainant for the mistake.
• Chastised the complainant for not volunteering to work on a project.
• Acted in a hostile and demeaning manner towards the complainant during a meeting.
• Accused the complainant of being condescending, rude and in violation of her oversight responsibility.
• Intentionally refused to select the complainant to represent the Office of Counsel at weekly meetings.
• Blocked an on-the-spot award that a district wanted to give the complainant.
• And much more.

On their own, some of the bullets above appear to be standard supervisory actions. And as we know from the numerous emails we’ve received (and the article Deb wrote last year), some overly sensitive employees are confusing basic supervisory functions with harassment.

In Gillespie, however, the pervasiveness of the evidence along with witness statements led to the EEOC overturning its administrative judge’s ruling that sided with the agency.

“It was a very nasty tone,” a co-worker testified about one of the meetings. “That’s what made me feel sick … And since [the complainant] is a good coworker and team player and has always been helpful, I was thinking, well, how can I reiterate to [the supervisor] that [the complainant] did everything she was supposed to do for my team . . . and make sure [the supervisor] understood that.”

In Gillespie, the EEOC not only overturned the AJ’s decision, but it also found the agency liable. While it directed the agency to secure training for the supervisor, the EEOC also strongly recommended discipline.

5. When making determinations about a hostile work environment, always consider the following:

• Frequency and duration of conduct
• Vulnerability of the victim
• Makeup of the workforce
• Relative positions of the perpetrator and harassed employee

If you’re looking for more guidance on hostile work environments, join us on Feb. 20 for the two-hour virtual training Navigating Complex Hostile Work Environment Harassment Cases. [email protected]