The Virginia Human Rights Act (HRA) prohibits many kinds of discrimination in workplaces in Virginia. Specifically, The Virginia HRA and federal law also make it illegal for an employer to discriminate against employees on the basis of the following characteristics:
- Race;
- Gender;
- Pregnancy;
- National origin;
- Age;
- Disability;
- A history of military service;
- Current enrollment in the military;
- Religion.
In general, having grounds for a claim of workplace discrimination also involves a specific adverse employment action. “Adverse employment” actions are any time of negative consequence in connection with a person’s job. It might be a denial of a promotion or some other advantageous job assignment. It might be wrongful termination.
In short, if an employee experiences some type of tangible negative treatment by the employer, and discriminatory intention motivates the treatment, the employee has a potential workplace discrimination claim. The person would pursue the claim by first filing a discrimination claim with the federal Equal Employment Opportunity Commission (EEOC).
What Is a Hostile Work Environment?
Success with a hostile work environment lawsuit would require the employee to prove all of the following elements:
- Protected Groups or Adverse Employment Outcomes: The first element 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.
- 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;
- 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 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 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 and also did nothing to prevent it.
All of these elements must be proven if a person’s hostile work environment claim is to succeed. 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.
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.
Federal and state laws also prohibit harassment against people undertaken in retaliation for filing a hostile work environment complaint.
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?
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 talk to a local attorney in Virginia.
If a person’s employer is not responsive and does not act to alleviate the hostile work environment, they would first submit a complaint alleging discrimination to the federal EEOC.
How Do I Prove a Hostile Work Environment?
Again, a person must have evidence to show 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.
An employer may avoid being found legally liable to their employee if it can prove the following:
- It made prompt and reasonable efforts to correct and prevent the harassment;
- The employee unreasonably did not take advantage of preventive or corrective opportunities that the employer offered.
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 Virginia Lawyer for a Hostile Work Environment Lawsuit?
If you believe that you work in a hostile environment, you want to consult a Virginia hostile work environment lawyer. At LegalMatch.com, your lawyer will review the facts of your case, help protect your rights, and get the remedies you deserve. Your attorney can guide you through the legal process from start to finish.
