Hostile can be a vague term to most of us. We tend to take it at face value—to mean unkind, malicious, vitriolic. But when it comes to the workplace, hostile takes on new meaning, and it’s a fine line that separates an unfriendly workplace from a hostile one.
In legal terms a hostile environment only exists when the negative treatment is based on something discriminatory. For it to be actionable, it must be due to your race, creed, color, religion, gender, sexual orientation, age or disability. Mocking the way you dress alone would not rise to a hostile workplace environment, but mocking a lisp or limping might.
If you do work in a hostile environment, here’s what you can do about it.
Alert your boss (or your boss’s boss if your supervisor is among the guilty parties). That person then must come up with an appropriate remedy for the situation. That may be diversity training, a reprimand in the file, various disciplinary actions or even firing.
File a complaint. If the hostile treatment continues, you can file a complaint with the Equal Rights Division (“ERD”) of the Wisconsin Department of Workforce Development.
Don’t quit if you want to pursue a claim or collect unemployment. In some cases, the employer may want to fire you but doesn’t out of concern for legal action. They want to push you to a place where you quit on your own.
Constructive discharge. If your environment is so hostile that you can’t bear it any longer, contact an employment lawyer. An employment lawyer can advise you on what’s called a constructive discharge. That is a situation in which you quit because your boss didn’t do anything about the discriminatory behavior—essentially terminating you.
If you do quit under the theory of constructive discharge, an investigator with the ERD will evaluate your claim and determine whether there’s probable cause discrimination occurred.
If you don’t like the determination, you can request a hearing before an administrative law judge. And if you don’t like the judge’s ruling, you can take your case to the Labor and Industry Review Commission. The commission won’t allow testimony at that stage but will analyze the records to determine whether the judge made a correct ruling.
Again, if you wish to pursue a claim due to a constructive discharge, be sure to consult an employment attorney first.
Finally, as you determine how you want to handle your situation, keep in mind that discrimination is not easy to prove. Your employer will probably have very good records, so you’ll need them too.
By Cheryl Gill, La Crosse Employment Attorney. For an employment lawyer in La Crosse, call her at 608-784-5678.