A hostile work environment occurs when:
- The defendant engaged in harassing conduct directed toward the plaintiff, or plaintiff personally witnessed the harassing conduct and it took place in her immediate work environment;
- Plaintiff’s gender was a “substantial motivating factor” for the harassment;
- This conduct was unwelcome and sufficiently severe or pervasive that it had the purpose or effect of altering the conditions of Plaintiff’s employment and creating an intimidating, hostile, abusive, or offensive working environment;
- The environment created by the conduct would have been perceived as intimidating, hostile, abusive, or offensive by a reasonable person in the same position as the plaintiff;
- The environment created was perceived by the plaintiff as intimidating, hostile, abusive, or offensive;
- The harasser was a manager or supervisor, or, the employer, employer's agents or supervisors knew or should have known of the alleged harassing conduct by its employee or others under its control and failed to take immediate and appropriate corrective action; and
- This environment caused plaintiff injury, damage, loss or harm.
A "substantial motivating factor" exists when a hostile environment arising from harassment is present and Plaintiff’s gender is both a motivating factor and a substantial factor in producing that hostile environment harassment.
In determining whether an environment is hostile or abusive, a court must consider all of the circumstances. These may include 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.
A hostile environment sexual harassment claim is not established where a supervisor or coworker simply uses crude or inappropriate language or offensive behavior in front of employees without directing sexual innuendo or gender-related language toward a plaintiff or women in general. However, abusive language or behavior of many kinds, not only sexual innuendo or gender-related language, can create a valid claim for hostile work environment if motivated by gender bias.
Typically, a plaintiff proves a sexual harassment claim with evidence of the following conduct:
- That the plaintiff was an employee or a person providing services under a contract with the employer;
- That the plaintiff was personally subjected to unwanted harassing conduct;
- That the harassing conduct was severe or pervasive;
- That a reasonable person in the Plaintiff’s circumstances would have considered the work environment to be hostile or abusive;
- That the plaintiff considered the work environment to be hostile or abusive toward women;
- That a supervisor engaged in the conduct or that the defendant-employer or its supervisors or agents knew or should have known of the conduct and failed to take immediate and appropriate corrective action;
- That the plaintiff was harmed; and
- That the conduct was a substantial factor in causing plaintiff’s harm.
The plaintiff may also prove her sexual harassment claim with evidence that others were harassed in her presence. In such circumstances, the plaintiff must prove that, although not personally subjected to unwanted harassing conduct, she personally witnessed harassing conduct that took place in herimmediate work environment. A plaintiff can even sue over harassing conduct that took place outside her presence so long as she was aware of the harassing conduct and it contributed to the creation of an overall hostile work environment.
Not only is sexual harassment illegal. The law also prohibits:
- Racial harassment
- Religious harassment
- Age-based harassment
- Harassment based on disability
- Harassment based on ethnicity or national origin