Is It Hostile or Discriminatory?
Employers and employees alike tend to misunderstand what constitutes discrimination by an employer. Whilst many people believe that an act by an employer may constitute discrimination, the reality of the situation is that there are specified protected categories that are deemed to be protected from discrimination. Other actions are not actually discrimination, though they may appear to be due to differing attitudes attributable to certain qualities or traits. State and federal laws set out different protected classes, but the core classes are generally present. For example, the Equal Opportunity Employment Commission (EEOC) protect the classes of race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability, and genetic information (including family medical history).
A common misconception is that all age discrimination is protected. However, age discrimination does not apply to those under 40 years old. For example, if an employer were to refuse to promote an employee because the employee is, in the employers view, too young to take on additional responsibility, although this may be morally unjust, it does not constitute discrimination under the EEOC if the employee is not 40 years old or older.
Another common misconception is whether an employer's behavior constitutes a "hostile work environment." A hostile work environment is a form of discriminatory harassment. Some employees believe that their boss yelling at them constantly or reprimanding them in front of other individuals may constitute a hostile work environment. However, the truth is that a workplace is not considered a hostile work environment unless the employer's behavior is related to a protected class. If an employer was consistently yelling at an employee because the employer believed that the employee was failing to do his or her job because of the employee's race, age, or religion, that would constitute a hostile work environment. Not only must the conduct be related to a protective category, but the conduct must also be both objectively and subjectively hostile or abusive or have actually altered the conditions of the victim's employment.
The Supreme Court has clarified, in Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), that in order for the conduct to be deemed a hostile work environment, all the circumstances of the employee's harassment must be carefully examined, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." It is generally easier to prove a claim of discrimination than it is to prove a hostile work environment.
Employers should consider that what an employee considers to be harassment or a hostile work environment may not prove those claims, but it may lend to prove other types of discrimination. It is crucial that employers are mindful of such matters and avoid disgruntling their employees and the potential litigation that may follow from errant comments which may be identified as some form of harassment or discrimination.
