The definition of a hostile work environment in federal law applies in North Dakota as it does in all states in the U.S. A person may sue their employer under federal law in North Dakota. They may also sue their employer under North Dakota state law, specifically the North Dakota Human Rights Act. Both federal and North Dakota state laws prohibit discrimination and harassment in the workplace that is based on certain protected characteristics.
These laws establish the legal foundation for addressing hostile work environments. A local attorney in North Dakota would be able to provide more information.
Specifically, North Dakota state and federal law both make it illegal for an employer to discriminate against employees on the basis of the following characteristics:
- Race
- Gender
- Pregnancy status
- National origin
- Age
- Disability
- A history of military service
- Current enrollment in the military
- Religion
- Genetic Information.
In general, a successful hostile work environment lawsuit claiming workplace discrimination or harassment may include the allegation that the employee experienced a specific adverse employment action. “Adverse employment” actions are any instances in which a person experiences a negative consequence in connection with their employment.
The employer might deny the person a promotion that they have earned. The employer might deny the person some type of advantageous job assignment. The employer might wrongfully terminate the person’s employment. The harassment might even be physical.
If an employee receives negative treatment from an employer and the motivation for the treatment is an intent to discriminate, the employee has a potential workplace discrimination claim. The employer would be automatically liable. The person would pursue relief by first filing a discrimination claim with the federal Equal Employment Opportunity Commission (EEOC).
A person may still complain of a hostile work environment even if they do not experience an adverse consequence in their employment as is explained below.
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 the EEOC.
Federal and Hawaii laws also prohibit harassment against employees done to retaliate against them because they filed a hostile work environment complaint.
What Is a Hostile Work Environment?
The North Dakota Human Rights Act, Title VII of the federal Civil Rights Act, and the federal American with Disabilities Act are the three laws that most commonly apply to hostile work environment cases. The law in North Dakota requires that the victim of a hostile work environment prove that this environment exists by the totality of the circumstances in the workplace if they are to prove a violation of the North Dakota Human Rights Act.
It is important to note that in order to prove workplace bullying of the type that is illegal, the employee must show that they were the target of bullying because of a protected characteristic, as noted above. Or it would suffice if a victim shows that they were the target, because they complained about illegal discrimination.
Of course, federal law applies in North Dakota as it does in all states in the U.S. Under federal law, a person would succeed with a hostile work environment lawsuit if they can prove all of the following elements:
- Protected Groups or Adverse Employment Outcomes: The first element is that the harassing conduct is related to the victim’s membership in a protected class. The protected classes are noted above.
- If an employee experiences adverse treatment in connection with their employment because of discrimination, the employer is automatically liable for harassment. “Adverse treatment” means a negative employment outcome, such
as firing, a lay-off, lack of promotion, or the denial of an advantageous job assignment. However, a person may still complain about a hostile work environment even if they do not experience adverse treatment.
- Harassment: The conduct that a person experiences in a hostile work environment must be serious enough to qualify as harassment. Harassment can be either verbal or physical. It might be sexual harassment.
- Harassing conduct must relate 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 a person’s national origin means they are incompetent or, in some other way creating a toxic work environment for the employee.
- Pervasiveness: The harassment must be pervasive, meaning that it occurs throughout the employer organization. It may also mean that the conduct has persisted for a long period of time. One single instance of harassment is not enough to be pervasive. Rather, the harassing activity must be repeated frequently over a period of weeks or months.
- Severity: The harassment 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 teases or ridicules an employee, they must do it with such frequency that it is unrelenting.
- A test the courts apply would be whether the conduct is so severe that it interferes with the employee’s ability to do their job. Courts also 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 the case that the employer knew, or should have known, about the harassing behavior. This may be easier to prove if the harasser is in a supervisory position. If the harasser is a co-worker, the employee making a claim must prove that the employer was aware of the harassment and also did nothing to put an end to it.
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.
Also, if at any time harassing conduct amounts to criminal conduct or it makes the victim fear for their safety or their life, they should call the police immediately to report the incident. Then a copy of the police report should be given to the employer. A person should also keep a copy in their records for future use.
When Should I File My Claim for a Hostile Work Environment?
A person should not delay in submitting a claim. However, they must file their charge no later than 300 days from the date when a person believes that the most recent discriminatory event occurred. A person should be prepared to provide specifics about the employer, such as company name, names of the people involved, complete contact information, and a detailed report about the alleged discrimination.
How Do I Prove a Hostile Work Environment?
A person has to be prepared to produce evidence that their workplace is, or was if they no longer work there, 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.
A person should keep a journal where they record events of which there may be no other evidence. They may want to note the names of other people who might be witnesses. 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 of a hostile work environment:
- They were harassed or discriminated against because of their gender, race, religion, age, sexual orientation, or other characteristic.
- 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 that 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?
After a person submits a claim for a hostile work environment to the North Dakota Department of Labor and Human Rights (DLHR), an investigator for the DLHR contacts the person within 30 days. If the investigator decides that the DLHR has jurisdiction, the investigator may conduct interviews with the employee, the employer, witnesses, and others. The investigator may ask to see supporting documents.
Investigators encourage the employee and employer to negotiate an informal resolution of the dispute. If they do not resolve the dispute, the DLHR determines whether there is “probable cause” to believe that unlawful discrimination occurred. If it did not, the complaint is dismissed.
If the DLHR finds that there is probable cause, it holds an administrative hearing to determine what remedy is necessary to correct the discrimination.
Generally, remedies for employees who are victims of hostile work environments are as follows:
- Injunctive relief might be granted, which would be an order requiring the employer to take some action to alleviate the situation and prevent future harassment
- An employer might be ordered to put an employee back in the position they had before the discrimination
- Compensatory damages to compensate the employee for their economic losses
- Non-economic damages may be awarded as compensation for pain and suffering
- Attorney’s fees and court costs
- In some cases, the facts justify it, such as punitive damages.
Federal law requires a victim to prove that the employer showed “malice” or “reckless indifference” to justify an award of punitive damages.
Federal law places limits or caps on the value of punitive damages that an employee may recover. The federal limits on damages are different for different employers. Under federal law, the limits range from $50,000 for small employers to $300,000 for large employers.
Do I Need a North Dakota Lawyer for a Hostile Work Environment Lawsuit?
If you believe that you work in a hostile environment, you want to discuss your concerns with a North Dakota hostile work environment lawyer. LegalMatch.com can quickly connect you to an experienced lawyer who can make sure that your rights are protected and that you get the relief to which you are entitled.
