Hostile Environment Sexual Harassment - Difficulties and Criticism

Difficulties and Criticism

Tolerance must be the rule in certain workplaces, and the standard for what constitutes a hostile environment differs from workplace to workplace. For example, it would hardly be fair to hold a strip club to the same standard as a law firm, although a strip club could still harbor a hostile environment if management took no action to prevent the dancers from unwanted attention outside of their normal job routine. For example, if a club had a strict "no touch" policy, allowing bouncers or bartenders to persist in unwanted touching could constitute a hostile environment. Moreover, the sensibilities of the most sensitive employee are not the standard—the conduct must be objectionable to any reasonable person.

However, an employer is not allowed to tolerate a hostile environment merely because one sex dominates a department or job function. An employee is entitled to an environment free of lewd, inappropriate behavior such as sexually derogatory jokes and obscene materials, especially in public areas.

Recently, some males in all male workplaces have made claims of hostile environment, often because they became uncomfortable with the sexual banter common in a department and were further denigrated for not joining in such behavior.

There is no universal standard as to what constitutes a hostile environment, and cases with very similar situations have been decided differently. Moreover, the standard of finding the employer liable is very high—the plaintiff must show that the employer was actually aware of the behavior, or should have been aware of it under reasonable circumstances. It is also not enough to show that sexually suggestive behavior occurred—the plaintiff must show that the employer could have taken reasonable steps to stop the behavior. For example, the employer could not be held liable for such behavior if it occurred at a bar after work.

A caveat, however. If the comments are made by a supervisor to a subordinate at the bar and they carry negative impact over into the workplace, the subordinate may make a claim for harassment, based on a hostile work environment.