What Constitutes a Hostile Work Environment?

Unfortunately, just because an employer treats employees poorly does not necessarily make a work environment “hostile.” However, if the environment has been made hostile on account of the employee’s race, sex, disability, etc., then there is likely a case.

A hostile work environment occurs when behavior in the workplace is so offensive, severe, and reoccurring that it creates an abusive or intimidating environment for an employee. The behavior also results in a change in the terms and conditions of the victim’s employment. There is no set list or formula of what constitutes a hostile work environment, as it can be a subjective term. Courts must assess several factors in determining if the environment is, in fact, hostile.

These factors include:

• whether or not the conduct interferes with the work performance of the employee;
• if the conduct is humiliating or threatening;
• how often the conduct occurs.

Some more common examples of harassment include:

• inappropriate racial comments
• sexual harassment in the workplace
• offensive emails
• unwarranted texts concerning a person’s age, weight, or race
• Unwanted touching

Inappropriate or offensive conduct does not need to come directly from a superior in the workplace to be a hostile work environment. It can come from anyone from a co-worker to an intern to a supervisor of another division. Employers have a responsibility to protect their employees from harassment despite who it comes from.

Discrimination in the Workplace

Some employers have attempted to drastically shorten the statute of limitations. This is despite the New Jersey Law Against Discrimination which allows employees two years. They do this by sneaking language into employment applications. The ability of employers to do so came before the New Jersey Supreme Court in the case of Rodriguez v. Raymours Furniture.

On behalf of the New Jersey chapter of the National Employment Lawyers Association, our firm filed an amicus (friend of the court) brief with the Court, arguing that New Jersey employers should not be allowed to get away with such maneuvers. We are pleased to report that the Supreme Court agreed with us and has now outlawed the ability of employers to shorten the two-year statute of limitations that exists under the New Jersey Law Against Discrimination.

In our brief to the New Jersey Supreme Court, we wrote:

“[This Court should not] allow employers to utilize employment applications as a tool to lure employment applicants – those who are anxiously focused on finding a new job, and not on the legalese in an application – to waive their right to petition the court for redress up to two years after suffering a discriminatory act. In other words, a key facet of New Jersey’s civil rights laws protecting workers from discrimination and retaliation would now be subject to unilateral revision by any employer in this State via the use of contracts of adhesion. The opinion below has been described as a “game-changer,” an “opportunity” for an “employer to choose its own limitation period” and “a decision that affects every employer and employee in the state” by commentators. Before the “game is changed,” this Court should grant Certification in order to review whether the Law Against Discrimination statute of limitations can be lawfully truncated through such adhesion contracts.”

The Fight Against Forced Arbitration

Here in New Jersey and all around the country, employers are increasing their use of forced arbitration agreements. They do this to compel employees to give up their right to a trial by jury in discrimination cases. Instead, they would be limited to private, secret arbitration proceedings. In this case, the deck is typically stacked against them.

Employers impose forced arbitration agreements on employees by hiding them in employment applications. or by insisting that current employees sign them as a condition of keeping their jobs.

At Schall & Barasch LLC, our firm has been among the leaders in New Jersey fighting to hold back the tide against these agreements. In the case of Dugan v. Best Buy, we were able to get the Appellate Division of the Superior Court of New Jersey to strike down Best Buy’s forced arbitration policy.

Contact an Experienced Employment Discrimination Lawyer

Attorney Patricia Barasch has more than 30 years experience representing employees. She has seen every type of wrongful termination case. This includes many complex employment discrimination cases. She enjoys the challenge of tackling the most complex legal issues. She takes on the biggest corporations and stands up for the rights of her clients.