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What is a Hostile Work Environment, and Is It Illegal?

Association of Texas Professional Educators
Association of Texas Professional Educators

Date Posted: 2/16/2023

By ATPE Staff Attorney Jennifer Gordon
We hear with some frequency from employees who feel they are being consistently subjected to poor treatment in their jobs. A supervisor may give “proficient” evaluation scores but seem to only make negative comments in person. An administrator raises their voice or “calls out” individual employees in front of others or denies certain workers time off while others appear to be unaffected. Treatment like this can be discouraging and feel increasingly urgent to address.
When members reach out for legal assistance regarding these issues, they often use the phrase “hostile work environment” to describe their experience. One of our tasks in advising our members with these concerns is to determine whether a violation of law or district policy has occurred. Often, it has not. If you’re in this situation or think you might be, it is useful to review what kinds of negative work environments are legally actionable.
The kind of hostility in the workplace that constitutes a legal claim is one that amounts to illegal discrimination or retaliation. As a legal matter, the term "hostile work environment" originally evolved to address cases of sexual harassment—a form of gender discrimination prohibited by federal and state law. Previously, sexual harassment was prohibited only if it consisted of “quid pro quo” discrimination—situations where either employment or a benefit of employment was made conditional upon the employee’s tolerance of, or submission to, unwelcome sexual advances or other sexually inappropriate behavior. In 1986, the Supreme Court recognized for the first time that sexual harassment can occur in an abusive or hostile environment, even if the employee has not been directly threatened with or subjected to economic harm.
Since then, courts have expanded the application of the “hostile work environment” form of discrimination beyond sexual harassment to include other types of illegal discrimination or retaliation. Before, employees who were treated badly for discriminatory reasons did not have a claim, absent some ultimate employment action, such as firing or failure to hire. Now, courts recognize claims where the employee can demonstrate the discriminatory conduct is severe or pervasive enough to make their job intolerable to any reasonable person.
For a claim of “hostile work environment” discrimination, employees must establish that:
  1. They belong to a protected group;
  2. They were harassed based on membership in that group;
  3. The harassment affected a term, condition, or privilege of employment; and
  4. The employer knew (or should have known) of the harassment but did not promptly correct it.
As indicated, only certain groups or characteristics are protected by anti-discrimination laws, specifically:  race, color, national origin, sex and sexual orientation, gender, national origin, religion, and age (over 40). For a hostile work environment claim to prevail, the employee must show that the hostile treatment was based on their status in one of these protected groups. In considering whether such harassment rose to the level of discrimination, courts will look to see how frequently the discriminatory, hostile conduct occurred; whether it was physically threatening or humiliating; whether it was both objectively offensive and offensive to the individual employee; and whether it was severe or pervasive enough to interfere with the employee’s performance.
One example of what was found to be an illegal hostile work environment in the state of Texas occurred over nine months of employment, during which a 53-year-old woman’s supervisor repeatedly called her “a stupid old woman,” “senile,” and “incompetent”; told her that younger employees were better at their jobs; and screamed and yelled at her on a daily basis, which the jury believed to have interfered with the employee’s ability to perform her job. This resulted in an unacceptable performance review for which she was later terminated.
It is important to note that this case included direct evidence the supervisor was subjecting the employee to this treatment because of her age. The mere fact that an employee is a member of a protected class is not enough to show that hostile treatment is discriminatory. And even statements that reveal a potentially discriminatory bias may not be sufficient evidence if they are not directly related to the hostile treatment or negative actions.
Unfortunately, the following are not legally actionable as hostile working conditions:
  • Harassment that is not based on illegal discrimination or retaliation (such as “playing favorites” in a way that does not affect a protected class);
  • Persistent treatment that is only offensive to the employee;
  • Isolated incidents or occasional discriminatory remarks;
  • General rudeness; or
  • Hostile treatment that does not interfere with the employee’s performance.
If you believe you are in a potentially actionable hostile work environment, please contact ATPE Member Legal Services as soon as possible for a confidential consultation with an ATPE attorney about your particular circumstances. There are deadlines to file a discrimination complaint, so time is of the essence. 
If you are subjected to harassing behavior that does not meet the elements of an illegally hostile work environment, you can review your local employee policies to see if any address rude behavior. We have seen very few districts adopt board policies that prohibit “workplace bullying.” These policies address a broader range of situations because there is no requirement that the bullying be evidence of discrimination against a protected group. However, it is worth noting that these policies often include a stipulation that such bullying does not include the “legitimate exercise of employee management.” So, on the one hand, these policies could be cited to address some types of hostile treatment that aren’t illegal. On the other hand, the policies’ exceptions for “legitimate management” seem to create a distinction between a challenging supervisor and a bully.
Whether or not the hostility you may be experiencing is a violation of law or policy, you have various options for addressing it, and ATPE attorneys are available to counsel you on those options.  Because some options have short deadlines, it is important to contact ATPE Member Legal Services as quickly as possible.