It is illegal under federal and North Carolina law for a person to be made to endure significant harassment in their workplace. A person’s first step should be to report the harassment to their employer. If a person’s employer fails to take action to stop the harassment, a person may then want to consider a hostile work environment lawsuit. Making sure that the employer knows about the harassment or should have known is a necessary prerequisite to filing a claim.
A person whose employer has failed to act to stop workplace harassment may file a claim with the federal Equal Employment Opportunity Commission (EEOC) or the North Carolina Human Relations Commission (NC HRC).
However, it is critical that the employee first reports the harassment to their employer. Again, only if the employer fails to act would a person file a claim with one of these agencies.
The federal laws that protect employees from employment discrimination include the following:
North Carolina also has a policy that prohibits unlawful workplace harassment in all state agencies. State employees as well as applicants for state employment are covered by this policy. Every agency is required to develop strategies to prevent workplace harassment at all work sites. Strategies must also address sexual harassment and retaliation.
What Is a Hostile Work Environment?
Success with a claim of hostile work environment would require the employee to prove all of the following elements:
- Protected Groups or Adverse Employment Outcomes: The first element that must be proven is that the harassing conduct is related to the employee’s membership in a protected class. The protected classes are based on gender, race, ethnicity, age, sexual orientation, religion, and national origin.
General harassment that is not related to an employee’s membership in a protected group means that the employee must show they were subject to “adverse treatment.” “Adverse treatment” means a negative employment outcome, such as firing, a lay-off, lack of promotion, or the denial of an advantageous job assignment;
- Harassment: The conduct about which an employee complains must be serious enough to qualify as harassment. Harassment can be either verbal or physical. It might be sexual harassment. It must be related to the employee’s membership in a protected class. Conduct that qualifies as harassment would be such conduct as another employee repeatedly making comments to the effect that an older employee’s age makes them unfit to do their job or otherwise creating a toxic work environment for an elderly employee;
- Pervasiveness: The harassment must be pervasive, meaning that it is spread throughout the employer organization. It may also mean that the conduct has persisted for a long period of time. A single incident is not pervasive. Rather, an offensive comment must be repeated many times over the course of weeks or months;
- Severity: The hostile behavior must be severe. It must be something more than occasional rudeness or tasteless joking. Instead, the behavior should be intimidating, offensive, or abusive. For example, if a co-worker is teasing or ridiculing an employee, it must be so frequent as to be unrelenting.
A test the courts apply would be whether the conduct is severe enough to qualify as harassment and whether it has interfered with the employee’s ability to do their job. Courts apply the “reasonable person” test, which asks whether a reasonable person would characterize the behavior as abusive or intimidating and how a “reasonable person would probably react if subjected to the same circumstances;
- Knowledge or Intent: Finally, it must be shown that the employer knew, or should have known, about the harassing behavior. This may be easier to prove if the harasser is in a managerial or superior position. If the harasser is a co-worker, the employee making a claim must prove that the employer was aware of the harassment but did nothing to stop it.
All of these elements must be proven if a worker is to succeed with a claim that they have worked in a hostile work environment. A person would want to consult with an attorney to discuss their situation and whether it rises to the level of harassment as defined above.
When Should I File My Claim for a Hostile Work Environment?
The first step for a person in putting together a claim for a hostile work environment is to make sure to have evidence to support the claim that they work in a hostile work environment.
As noted above, the type and extent of the harassment that qualifies is characterized by repeated, serious insults, threats, mockery, or offensive humor about a person’s membership in a protected class. Protected classifications are a person’s race, religion, gender, age, or disability.
If a person believes that they are the victim of a hostile workplace harassment, they would want to take the following steps:
- Gather Evidence: An employee should collect and keep text messages, emails, and other communications that clearly demonstrate the harassment;
- Keep a Diary: An employee wants to record in writing the date, time, and nature of harassing incidents. The more accurate and routine the entries, the better it would be for their case;
- Report Harassment to the Boss: If a co-worker who is harassing a person, they would report it to the boss. If the harassment is coming from their boss, a person would report it to someone in the Human Resources (HR) department. If there is no HR department, then it may be time for a person to consult with a local attorney in North Carolina.
If a person’s employer is not responsive and does not act to alleviate the hostile work environment, they have several options for seeking a remedy for their problem as follows:
- Submit a complaint alleging discrimination to the federal EEOC;
- Submit a complaint alleging discrimination to the North Carolina Human Relations Commission;
- File a civil lawsuit.
Be aware that pursuing an employment claim can often be complex and may involve many specific requirements and classifications. For instance, the Retaliatory Employment Discrimination Act (REDA) prohibits employers from retaliating against employees who in good faith engage in certain activities protected under one of the 11 statutes described in the act.
These include:
- Filing or threatening to file a wage and hour, workplace health and safety, or worker’s compensation complaint or claim
- Retaliation on the basis of genetic testing, possessing the sickle cell trait, or being a hemoglobin C carrier
- Retaliation by employers in certain situations based upon National Guard service, participation in the juvenile justice system, seeking domestic violence protective orders, pesticide exposure, and reporting activities of their employers under the Paraphernalia Control Act
REDA violations occur if an employer retaliates against an employee because of these specific protected activities. If you have questions about REDA or whether a violation has occurred, you should contact a lawyer who can help you determine your next steps.
How Do I Prove a Hostile Work Environment?
Again, a person must have evidence that shows that their workplace is toxic or hostile. As noted above, a person would want to record the incidents of harassment or discrimination as they occur. They would want to collect records of communications, e.g., phone messages, text messages, emails, and the like, that show evidence of the hostile conduct.
If a person wants to take legal action for their workplace distress, they must be able to prove their claims. A person must prove the following elements:
- They were harassed or discriminated against because of their gender, race, religion, age, or sexual orientation;
- The treatment was not welcome;
- The behavior went on consistently for a long period of time;
- The person reported the harassment or discrimination to their boss or HR, but the employer did not take action to stop it.
Again, a person would also want to prove that they reported the situation to their employer and the employer did not try to alleviate the situation.
In addition to the elements of their claim, a person would have to prove the facts that would entitle them to the remedy they seek, e.g., that they suffered economic loss.
What Types of Remedies Are Available for a Hostile Work Environment Claim?
The remedies that are available include payment of back pay, payment of compensatory damages, reinstatement to one’s job, reinstatement of an employment benefit that was denied, an order for policy changes, legal fees, and punitive damages. Of course, the exact remedy that a person might receive would depend on the unique facts of their particular situation.
Do I Need a North Carolina Lawyer for a Hostile Work Environment Lawsuit?
If you have been the victim of a hostile work environment, you want to talk to a North Carolina harassment lawyer. LegalMatch.com can connect you to a lawyer who will review the facts of your situation and guide you to the best way to protect your rights.
