Almost every week, we hear from a client that an employee has complained that they have been subjected to a hostile work environment. Sometimes the complaint requests that the company take steps to resolve these concerns, while other employees may use this phrase as part of a demand for compensation. From the legal perspective, what is a hostile work environment, and when are employers liable for creating or not addressing one?

The phrase hostile work environment originated with harassment claims under Title VII. Federal courts have long held that employees are protected against exposure to severe, pervasive, and intolerable work conditions because of their membership in a protected class such as race, sex, religion, and disability. However, in recent years, employees have started using hostile work environment to describe conditions unrelated to such protected classes.

For example, an employee complains that his manager has created a hostile work environment because he is critical of her work performance, or keeps shifting performance expectations. When questioned by HR, the employee gives no indication of any belief that her sex or other protected classification has anything to do with the alleged treatment. In many situations, employees claiming hostile work environment are saying that someone at work is being mean to them or is imposing unreasonable and unfair expectations. When these complaints are untethered from civil rights or anti-retaliation laws, they cease to have such legal meaning. Generally uncivil or unfair work practices fall under at-will employment, and employees cannot state a claim for legal relief based merely on their alleged exposure to such behavior.

Extremely severe conduct such as physical assault or threats could lead to a claim of infliction of emotional distress. A handful of states and municipalities have adopted laws that provide remedies for bullying workplace behavior. If an employee claims that workplace conditions have led to a diagnosis of mental health issues, the employer could have obligations under the Americans with Disabilities Act (ADA) or Family and Medical Leave Act (FMLA) to provide leave or other accommodations. Absent these circumstances, the employer has limited exposure to legal claims based on these general business complaints.

The main threats from failure to address employee complaints are turnover and low productivity as opposed to legal exposure. Allegations of hostile work environment seem to have increased with the advent of ChatGPT and other artificial intelligence tools. As these programs have proliferated, they appear to be suggesting to users that they have viable legal claims in situations without any relationship between the alleged condition and any legally protected rights. 

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