What is, and is not, a hostile work environment?

Hostile work environment is frequently misunderstood by employees. Employees working for tribal employers are just as confused as employees working for non-Native organizations.  Sometimes an employee’s confusion regarding what is, and what is not, a hostile work environment, influences the way employers address the behavior in the workplace.  Employers which improperly label hostile workplace behavior as a subset of sexual harassment likely will increase the perception of risk within the tribal organization. Those misperceptions likely will make it more difficult for the tribal organization to make a fair employment decision.

Over fifty years ago (July 2, 1964) the United States defined gender based harassment to include, among other things, unwelcome sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature when such conduct creates an intimidating, hostile or offensive work environment.  By the middle 1970s the term “sexual harassment” was coined and its frequency of use increased significantly when law professor Anita Hill testified against her former EEOC boss Justice Clarence Thomas in the Senate’s Supreme Court nomination hearings.  Those hearings generated lots of debate about whether Professor Hill was a victim of sexual harassment by her former boss or whether Justice Thomas was the victim of political maneuvering.  Sexual harassment laws defined sexual harassment to include two subsets of behavior.  A subset included quid pro quo harassment which includes supervisors leveraging their authority over subordinates by promising better working conditions or advancement if the subordinate will “cooperate” by dating the boss.  The second subset of sexual harassment carries the label of hostile work environment and I want to focus on that definition.

The definition of a hostile work environment intersects unwelcome sexual behavior and a hostile work environment.  If the behavior is not sexual in nature and only hostile in nature, there is no sexual harassment.  In the absence of facts revealing a hostile work environment as a subset of sexual harassment, the employee’s hostile behavior should not be tolerated but instead must be managed, but not through the employer’s sexual harassment policy or law.  The behavior is managed, not through the sexual harassment policy, but instead within the employer’s zero tolerance bully policy. For less severe behavior, employers may address the misconduct through a “get along well with others” policy which demands professionalism from employees in the tribal workplace.

Again, it must be emphasized, that whether the workplace behavior is sexual harassment or workplace bullying, both are obnoxious and must be addressed by the employer. Both are disrespectful of victims and there should be no tolerance for that behavior.

With that strong statement in mind, employees who are assertive, grumpy or even hostile are not creating a hostile work environment as defined by typical legal standards. Unless the assertive, grumpy or hostile workplace behavior also includes a sexual component, there is not a hostile work environment as defined by typical sexual harassment laws.

Why is the distinction between sexual harassment and workplace bullying important to tribal employers?

This distinction between addressing the obnoxious behavior outside the sexual harassment policy when the behavior is not sexual harassment is important because of the employer’s increased potential for legal liability relating to harassment versus less legal liability for obnoxious behavior which does not fit within the definition of harassment. If an employer perpetuates the employee’s misclassification of assertive workplace behavior as a subset of sexual harassment, the employee may be more likely to assert legal and administrative claims.  On the other hand, if tribal employers have strong policies which address true sexual harassment and bullying, and address both in the workplace in a no nonsense manner, most employees will get what they want-a safe place to work without the litany of real problems generated by harassment and bullying.

Moreover a failure to properly label workplace behavior as sexual harassment or bullying sometimes generates a disservice to the victim and the perpetrator.  For victims, some employers are reluctant to address sexual harassment in the workplace for fear of admitting it is present.  In other words, some employers make the mistake of hiding their head in the sand, denying the harassment exists, and hoping it will go away. Also, alleged perpetrators of obnoxious workplace conduct can be summarily terminated if there is an allegation of sexual harassment, when in some of those instances, the termination can be an over-reaction if the behavior is properly understood.

Recommendations:  Tribes should define equal employment opportunity to include those protected classes which are consistent with the tribe’s values and goals.  Some tribes include in that definition legal protection as to race, religion, national origin, gender, age, disability, sexual orientation, pregnancy, marital status, military status and other classes. Once equal employment opportunity is defined, the tribe should, in law and policy, prohibit discrimination and harassment as to any of the protected classes. From there tribal employers should address sexual harassment specifically.  Finally, tribes should adopt a bully policy and a “get along well with others” policy to cover obnoxious workplace behavior which may not fit within the typical and accepted definition of sexual harassment.

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.