Behavior that would universally be considered harassing in one job environment might not be considered outrageous in another situation. In its Oncale decision, the U.S. Supreme Court said that judgments over whether an employee is exposed to a hostile and offensive working environment depend on the particular job's context. This factor was made clear last month in a Fifth Circuit Court of Appeals harassment case.

In Hernandez v. Yellow Transp., Inc., the plaintiffs were Mexican-American employees who alleged that they had been harassed and retaliated against due to their race. Although the plaintiffs introduced evidence of cruel and hostile behavior among co-workers, they could not demonstrate that any of these incidents were directed against them due to their race. Employees of all races were subjected to harassing behavior, and the plaintiffs could not demonstrate that their treatment was manifestly different than their non-minority co-workers. The court characterized the employer's facility as a rough place to work, and standards of acceptable behavior were lower than would be the case in an office or other environment.

Admitting that your workplace is an equal opportunity hellhole is not the best defense against harassment claims. Employees in protected categories who are subjected to this behavior may believe that they are being singled out for these reasons. Even if the claims are ultimately legally defensible, the employer will spend significant time and money in dealing with the results of a workplace where bullying, teasing and unprofessional behavior is tolerated. Even if the behavior is not discriminatory, employers have an incentive to end it before it creates legal problems.