Hostile work environment and workplace harassment—how far can my boss go?

fadi-yousef“Hostile work environment” and “harassment” are probably two of the most common terms I hear in my everyday practice. Both terms are generally interchangeable under the law and mean the same thing. Workplace harassment takes different forms such as being subjected to yelling, bullying, intimidation, ridicule, belittlement, false accusations, and profanity. Because Texas is an at-will employment state, however, not every harassment is illegal. In fact, most forms of harassment are legal.

There are a few requirements for the harassment to be illegal. First, it must be discriminatory—meaning that it must be based on a protected characteristic, like race, color, religion, sex (including pregnancy), sexual orientation, national origin, age, disability, or genetic information. If the motive behind the harassment is something else that is not protected, like personal hatred or big egos, then the harassment, no matter how awful, is not illegal (with a very narrow exception discussed below).

Second, even if the harassment is indeed discriminatory, it must still meet other hefty requirements to be illegal. For example, the harassment must be unwelcome and must be severe or pervasive. If the harasser is not a supervisor, the victim must prove an additional element that the company knew or should have known about the harassment and failed to take prompt remedial action.

The “severe or pervasive” standard is not an easy one to prove. Courts have universally held that simple teasing, offhand or trivial comments, and isolated incidents (unless extremely serious) will not amount to discriminatory harassment. The harassment must be more than rude or offensive comments, teasing, or isolated incidents. In addition, the work environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. And whether an environment is hostile or abusive depends on a totality of circumstances, including frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance.

But what if the harassment is really, really, really egregious, but not based on a protected characteristic? Texas law makes one very narrow exception to non-discriminatory harassment: Intentional Infliction of Emotional Distress (IIED). If there is one thing you need to know about IIED, it is that IIED is a “gap filler.” In other words, Texas courts allow you to sue for IIED only when there are no other laws that you can sue under. So if your boss fires you because of your race, or harasses you because of your gender, or assaults you at work, or demotes you because you complained of discrimination, you cannot sue for IIED, because those actions are covered by existing laws.

To prove an IIED claim, you must show that (1) the defendant acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the actions of the defendant caused you emotional distress, and (4) the emotional distress you suffered was severe. Extreme and outrageous conduct is conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” You can’t sue for IIED because of mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. If you believe you are subject to harassment or hostile work environment, you should consult with an experienced employment attorney to know your rights.

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