Watch Out for Hostile Work Environments

March 4, 2011 by David C. Swedelson

By Sandra L. Gottlieb, Esq.

Although the legal definition of what constitutes a “hostile work environment” is continually evolving, an employer has a general duty to protect its employees from a hostile work environment which can generally be defined as existing when an employee experiences ongoing workplace harassment and fears going to work because of the offensive, intimidating, or oppressive atmosphere generated by the harasser. Hostile work environments apply to community associations and their managing agents, whether they are directly employed by the association or through a management company. The harassers can be board members, owners, residents and even vendors. The association’s duty to provide a hostility-free work environment also extends to all association employees, and not just the manager(s), and to the employees of its vendors such as landscaping, maintenance and security personnel.

As defined above, some signs of a hostile work environment may include workplace harassment or fear of going to work. In order to protect the association from an unwanted lawsuit from an employee claiming harassment, all concerns regarding this issue should be documented and investigated as soon as they are reported or otherwise discovered, and immediate action should be taken to protect the association’s employees and service providers. Usually, normal criticism and corrective actions are not considered contributing factors to a hostile work environment. However, a board of directors should be careful when taking such actions not to do so in a way that is threatening or intimidating to the employee.

Racist comments or ethnic slurs at work can also amount to a “hostile work environment” depending on the number of incidents and the working relationship between the speaker and receiver of the discriminatory comments.

In a 2003 California case, Dee v. Vintage Petroleum, Glenda Dee brought an employment discrimination action against her employer under FEHA, the Fair Employment Housing Act. She claimed that her supervisor, Paul Strickland, asked her to lie about company business and secretly take documents from another supervisor’s desk. Additionally, she claimed he insulted her, used profanity, and made a negative comment about her race, saying, “it’s your Filipino understanding versus mine” when she told him it made her uncomfortable that he asked her to lie to other supervisors. [Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30]. Because of Strickland’s actions and comments, Dee left work. She said that the hostile work environment created a disability for her under FEHA (post traumatic stress disorder), and that she would return to work if Vintage Petroleum promised to limit her contact with Strickland. They denied her this request and instead fired her. The Court stated that based on these facts, Dee could take this case to trial and let a jury decide whether the situation amounted to a “hostile work environment,” thereby reversing a lower court’s ruling of summary judgment for the defendant, Vintage Petroleum. As for her claim under FEHA, however, the Court decided that she did not have a valid disability claim.

Although “there is neither a threshold or a ‘magic number’ of harassing incidents that gives rise to liability nor a number of incidents below which a plaintiff fails as a matter of law to state a claim,” courts often find that a single offensive act is not enough to create a hostile work environment. [Rodgers v. Western-Southern Life Ins. Co. (7th Cir. 1993) 12 F.3d 688, 674]. Some jurisdictions will, however, if the utterances are made by the employee’s supervisor, consider a single racial slur to create a hostile work environment. In 1998, the New Jersey Supreme Court opined that where a supervisor makes a single racial slur, that exacerbates the severity of the remark. [Taylor v. Metzger (1998) A.2d 685, 694]. Supervisors have an ability to intimidate and control employees in a way that equal-level coworkers do not. Strickland not only degraded and insulted Strickland on several occasions, he also said he would “drag her down” if she told on him, making his power over her very apparent. Strickland’s racial slur followed Strickland’s complaint that he, as her supervisor, told her to lie. A reasonable inference is that Strickland wished to intimidate her so that she would not complain to higher management about his conduct.

Community associations can sometimes experience heated discussions at board meetings and member meetings. We have witnessed occasions where a member has crossed the line and personally threatened an employee of the association. When that happens, the board should take immediate action to protect the employee including, if warranted, legal action. Remember, the actions of members can expose the association as well as themselves to potential liability. In these cases, the association must take immediate action to demand that the member cease their behavior and inform the member that the association will pursue indemnity from the member should the employee file a complaint regarding a hostile work environment. In California, any association whose employee has suffered unlawful violence or threat of violence from any individual that can be construed to be, or to have been, carried out at the workplace, may seek a restraining order through the Court. The employer initiates the action with the filing of a “Petition of Employer for Injunction Prohibiting Violence Against Employee.” The initial order from the Court is in the form of a temporary restraining order with a corresponding Court hearing date, at which time a restraining order, lasting up to three (3) years, may be granted.

Associations that are dealing with these types of issues should confer with legal counsel regarding the association’s obligations to the employee and options for addressing the issues.

If you have questions regarding this subject, please contact Sandra Gottlieb at: slg@sghoalaw.com.