Most people have had a job with a boss or coworkers who treated them badly to some degree or created a toxic working environment. Sometimes that bad behavior crosses the line into illegal behavior. So when can you sue for a hostile work environment?

What is the definition of a hostile work environment? In plain terms, a hostile work environment legal claim is a type of discrimination claim that takes the form of harassment. In 1986, the United States Supreme Court decided the case of Meritor Savings Bank v. Vinson, which held that a harassment claim can be based on a hostile or abusive working environment. 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986):

• For harassment to be illegal under Meritor, instead of just highly objectionable, it must be sufficiently severe or pervasive to the point of altering the employee’s working conditions and create an abusive working environment. In other words, hostile environment discrimination exists “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
• The “incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.”
• The harassment must also be both objectively and subjectively offensive as determined by “looking at all the circumstances.”
• These circumstances may include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”

When is bad treatment enough to sue your employer for a hostile work environment? As stated above, the courts look at different factors [https://www.eeoc.gov/harassment ] to decide if what happened to you crosses that line from bad behavior to illegal behavior, but the following simple questions highlight what is considered:

• How often did the bad behavior occur?
• Was the reason for the bad behavior because of your age, race, sex (this includes sexual harassment), disability, or any other group that is protected by civil rights laws? [https://kchr.ky.gov/About/Pages/Kentucky-Civil-Rights-Act.aspx ]
• Was the bad behavior severe?
• Would a reasonable person in your situation also think that your workplace was hostile?
• Did the words or conduct interfere with your work?

Hostile work environment cases can arise from harassment toward employees because they are members of any protected class. Sexual harassment is very common, as is racial harassment, based on ethnicity, national origin or religion. Other common hostile work environment complaints are based on sex, disability, and sexual orientation.

What specific behavior counts as a hostile work environment? It would be impossible to create a list of everything that counts as illegal hostile behavior, but juries are tasked with looking at the situation as a whole in hostile work environment cases. “Whether a work environment is hostile is determined on the totality of the circumstances….” Lumpkins v. City of Louisville, 157 S.W.3d 601, 605 (Ky. 2005).

Here are some specific examples of conduct that can be evidence of a hostile work environment:

• Insults
• offensive jokes
• aggressive behavior
• being excluded
• verbal attacks
• mocking behavior
• slurs
• sexual comments and questions
• abusive behavior
• display of offensive materials or objects
• constant requests for dates
• bullying behavior
• offensive and unwelcome touching
• intimidation
• gossip
• being isolated from the group
• being held to a higher standard than other employees
• deliberate humiliation
• threatening behavior
• physical attacks

If the hostile behavior is severe or pervasive and interferes with your work, you likely already have a good understanding of those facts and may want to contact an attorney who helps employees with workplace problems. (“…discrimination must be severe or pervasive…The words ‘severe’ and ‘pervasive’ are not beyond the understanding of any juror. They are not terms of art, nor are they arcane.”
Lumpkins v. City of Louisville, 157 S.W.3d 601, 605 (Ky. 2005).)

What constitutes severe hostile behavior such that even one incident is sufficient to establish a hostile work environment claim? Physical assaults, unwanted touching, and threats of the same can constitute the basis for a hostile work environment. No employee will be able to function well in such an environment after experiencing this type of hostility and aggression. Whatever conduct you are suffering in your workplace, the conduct does not have to both severe and pervasive, it can be one or the other.

What doesn’t count as illegal hostile behavior at work?

• “…offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in ‘the terms and conditions of employment.’” Ammerman v. Bd. of Educ. of Nicholas Cty., 30 S.W.3d 793, 799 (Ky. 2000).
• Yelling in and of itself may not create a toxic work environment.
• A rude or mean isolated comment may not qualify for a hostile work environment lawsuit.
• “…’simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283 (1998).
• Angry or unfair behavior by a boss who is a jerk to everyone regardless of who they are may not violate the law.
• Supervisors and managers who have “favorites” are also not breaking the law so long as they aren’t picking favorites based on excluding people who are in legally protected groups.

If you feel that what you have experienced is happening quite often or is severe, and it happened because your boss, supervisor, or coworkers have negative opinions about your age, race, sex, disability, national origin, orientation, or any other legally protected aspect of who you are, make sure you have read any workplace policies on harassment to find out if you can report the behavior. Your employer might be able to defeat your hostile work environment claim if you do not report the bad conduct under the employer’s reporting policy. “…a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998). Basically, the courts want to give the employer a chance to fix what is wrong in the workplace by requiring employees to use the employer’s policy requiring a report of the hostile conduct. The Kentucky Supreme Court has interpreted this to mean that an employer must confront an alleged harasser “with the details of the [employee’s] allegations; and, if such was brought to his attention, whether it did so in a reasonable manner to prevent and correct the misconduct.” Bank One v. Murphy, 52 S.W.3d 540, 545 (Ky. 2001)

In addition to reporting the toxic work environment under any reporting policy, one of the most important steps you can take is to keep a running list of notes of the harassing and abusive behavior. Take notes with the following questions in mind:

• How often has this toxic behavior happened? Note specific dates if at all possible.
• What exactly happened?
• What did they say?
• What was my response?
• Who were the witnesses to this harassing conduct?
• Was the harasser a supervisor, manager, owner, or some other person with authority over me?
• Was I held to a higher standard than other employees? Why is my best guess as to why that happened?
• Have the people who are committing the harassing conduct or actions done this in the past?
• Is my employer aware that this person has done this in the past? What are the details of that?
• Did any of the hostile conduct take place in front of supervisors, managers, or owners?
• Is there any other reason that my employer should have known about the toxic conduct?
• Does my employer have a reporting policy for this negative behavior?
• Have I adequately reported under that policy?
• What was the company’s immediate response to my report or complaint? What exactly did they say in response to my report or complaint?
• Did my employer take reasonably prompt steps to correct and prevent the harassment? What were those steps?
• Were the steps taken by the company to prevent or correct harassment actually effective?
• What harassing or abusive conduct happened after I made a complaint about the hostile work environment?
• How has the company treated me since I made my report or complaint?
• How has the hostile work environment affected my ability to do my job?
• Have I had to work harder at concentrating on the job because of the negative behavior that has been directed at me?

It’s also important to keep track of how the hostile work environment has directly affected you in your job. Experiencing a toxic job can lead to excessive stress, fatigue, depression, anxiety, insomnia, and even feelings of burnout. You may frequently ruminate on what you have been experiencing. People in a toxic work environment may feel unmotivated, and their productivity may decline. These employees may have a more difficult time engaging with others in the workplace and communicating openly about their needs. Most people like to think that they can handle whatever has been thrown at them, but when you are experiencing an abusive workplace, it is necessary to take stock of what that behavior is actually doing to your mental state and your work performance, as most people would actually suffer ill effects under hostile circumstances.

One note of caution when considering quitting your job due to a hostile work environment. In order to make out a legal claim that you were forced to resign by the hostile working environment, you have to meet a certain standard of evidence to prove this, in the words of the courts, to prove that you were constructively discharged. “The commonly accepted standard for constructive discharge is whether, based upon objective criteria, the conditions created by the employer’s action are so intolerable that a reasonable person would feel compelled to resign.” Northeast Health, Management, Inc. v. Cotton, Ky. App., 56 S.W.3d 440, 445 (2001) (internal quotation marks omitted). Not all hostile or abusive actions are going to be considered as so intolerable that a reasonable person would feel compelled to resign. This is where your note taking is going to come in handy, but a conversation with an attorney prior to quitting is highly recommended.

If your employer doesn’t fix the situation, consult with an experienced employment attorney to find out what your rights are.