Are grumpy employees creating a hostile work environment which is actionable under the law?

Grumpy workers (even hostile workers) do not necessarily create the circumstances for an employment related court action. On the one hand, if the grumpy worker is grumpy with everyone, the employer should certainly manage the grumpy employee toward respectful workplace behavior, but there is little risk of a lawsuit.  On the other hand, if an employee is selective in their grumpy behavior and targets a particular gender (“Women should be at home not in the workplace.”) a hostile work environment may be the result and the employer could be facing a claim.  By linking the grumpy behavior with a protected group like gender, the employer could face a lawsuit.  The key ingredient separating the first and second scenarios above into a managerial matter (just grumpy behavior) and a lawsuit (grumpy behavior targeted against women) is addressed by the third element below-membership in a protected group.

Liability from a viable sexual harassment claim comes from hostile behavior targeted to people based on their gender.  To establish a claim based on a hostile work environment the claimant must prove: 1) she is a member of a protected group; 2) she was subjected to unwelcome harassment; 3) that harassment was based on her membership in the protected group; and 4) due to its severity or pervasiveness, the harassment altered a term, condition, or privilege of her employment and created an abusive work environment.

A mere utterance of an epithet which engenders offensive feelings in an employee is not sufficient to satisfy these requirements. A claimant does not make a showing of a pervasively hostile work environment by demonstrating a few isolated incidents of enmity (actively opposing) or sporadic slurs.  Instead, there must be a steady barrage of opprobrious (shameful) comments.

The Court must examine the circumstances both objectively and subjectively, and consider whether a reasonable person in claimant’s position would have found the atmosphere hostile. The relevant circumstances may include 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.  Thus, where a plaintiff offers evidence of a few isolated incidents of harassment, such evidence is insufficient to establish the severe or pervasive harassment which is actionable, and judgment is proper.

Therefore, if the grumpy behavior is severe, targeted against a particular protected group, and a member of the group suffers a negative job condition, the employee has made a sufficient showing of sexual harassment.  The employer may have defenses to the claim, but that conversation is for another day.

Recommendation:  Use incentives to create a grumpy free workplace and recognize the difference between grumpy behavior which may create a hostile work environment and grumpy behavior which does not create a hostile work environment.  A strong policy, training and enforcement of sexual harassment policies will reduce the risk of liability and increase the productiveness of the workers.  Additionally, addressing the behavior of grumpy employees is in the best interests of employers whether the behavior leads to a lawsuit or “just” poor employee morale.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.