Hi bren,
I'm glad I could answer this question for
you. I hope you like my work.
A quick search on google for:
"What constitutes a hostile workplace"
turned up 3 pages. And even though it was only
three... those pages are just so... well, like
google, they're perfect. ;o)
The first link I will excerpt because it has
graphic content:
[ http://216.239.35.100/search?q=cache:F6eG1XDLonMC:www.citypages.com/databank/21/1017/article8699.asp+%22What+constitutes+a+hostile+workplace%22+hostile+workplace&hl=en&ie=UTF-8
]
"The context of the business can be an important
part of establishing sexual harassment or hostile
workplace claims in court, says Michael Jordan, a
professor at William Mitchell College of Law.
While employees, unless protected by contracts,
can be fired for any reason, proof is a different
story. "Not every comment can be used to support a
claim of offensive conduct. You have to look at it
in context," he explains. "
~~~
"And perhaps that's because exactly what
constitutes a hostile workplace is in a bit of a
gray area, depending as much on common sense and
the surrounding circumstances as on the offending
comments or actions. A successful claim must prove
that the problems are "severe and pervasive," says
Stephen Befort, a professor at the University of
Minnesota's Law School. It's not enough that one
person is offended by an overheard conversation.
But if the behavior is extreme or repeated, it
could become a problem."
I think I could leave it there and successfully
answer all 4 of your questions...
1)What constitutes a hostile workplace?
2)Is a hostile workplace morally acceptable?
3)Is the concept of hostility in the workplace so
subjective that it is useless as a guide to
ethical conduct?
4)Are there acceptable parameters that safeguard
employees without creating excessively stringent
constraints on employee freedom?
But some of the answers would have to be inferred
from the excerpt and I'd like to address it a bit more
because I think these concepts need to be "put out
there" a bit more. And I think you deserve indepth
study on this.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
As the prior excerpts stated, what constitutes
a hostile workplace really, really has to do
with common sense.
Ahhh, but to quantify... how do we do that?
How do we decide one word is allowable, or
one type of atmosphere is acceptable, and
one is not? Do we follow what other groups
have standardized?
I found the Motorola 'Code of Business Conduct'
[ http://www.motorola.com/code/code.html ]
CONSTANT RESPECT
We will treat each other with respect and fairness
at all times, just as we wish to be treated
ourselves. We will value the difference of diverse
individuals from around the world. Employment
decisions will be based on business reasons, such
as qualifications, talents and achievements, and
will comply with local and national employment
laws.
HARASSMENT
Abusive, harassing or offensive conduct is
unacceptable, whether verbal, physical or visual.
Examples include derogatory comments based on
racial or ethnic characteristics and unwelcome
sexual advances. We are encouraged to speak out
when a coworker's conduct makes us uncomfortable,
and to report harassment when it occurs.
Boy talk about grey areas. But they do mention
the national employment laws. That's a good place
to go to. The government says...
You have a right not to experience discrimination
at your job or when you are looking for a job.
There are laws protecting most workers from
discrimination based on:
-color
-race
-national origin
-religion
-status as a victim of domestic violence
-sex
-age
-marital status
-sexual orientation
-disability
Any type of hostility that can be correlated
to that, would definitely be intolerable.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
So lets say this hostility is in the form of
verbal comments. Not abuse, but just the
context of "general office chat" Something
that is found to be offensive by another
employee.
How about George Carlin's "Filthy Words"
*warning, although a government transcript
there are some 'questionable words' contained
herein:
[ http://www.eff.org//Legal/Cases/FCC_v_Pacifica/fcc_v_pacifica.decision
]
Hehe... I'm still laffin.
Ok, anyway... I think that demonstrates a really
good starting point.
Common sense prevailing, one would presume
never to hear anything like that in a "regular"
workplace. Uh oh. What's a "regular" workplace???
Ok, I can't go there, that wasn't part of the
questions.
So, lets say instead. A workplace, regardless
of type, dealing with off the street customers
should maintain a very dignified business air,
in the "common area" or reception area, etc.
The highest business etiquette:
[ http://www.businessculture.com/southafrica.html ]
Hmmmm, things are different in different parts
of the world. Lets keep it on the mainland,
good ole U.S.A. And lets leave the customers
out of this. They will make their own decisions
and complain if the matter arises.
There are many fine points to etiquette, but
that really isn't the question here.
[ http://members.shaw.ca/mc.tansey/office_etiquette1e.htm ]
Or is it? Is it instead office conduct?
Boy this is where it gets difficult.
Doesn't it really just boil down to what one
person is willing to accept? When does it
become hostile?
Maybe... we should use an average basis. Lets
say there is a company with 10 people working
at it. This company does not directly interact
with the public, thus you don't need "public
etiquette" 80% of the employees communicate
amongst each other, in a manner such as George
Carlin's famous piece. 10% do not participate,
10% are offended? Tricky. we're all supposed to
have the right to work at a place that we are
gainfully employed at... but now we are allowing
the 10% of 100% to modify 80% just to make them
happy, when they could just leave, and probably
make everyone else happy. (Sorry, that's confusing
and presumptive.) And this would only really work
for a small group like that. Just 1 person. The
percentages would not scale up well to larger
groups. To lets say maybe 100 employees and
then the 10% that weren't happy are now 10 people.
An atmosphere with 80 people happy, 10 not & 10
don't care. That makes it a bit more of an issue.
It seems with more people agreeing against this
type of "atmosphere", there is a reasonable
solidarity. Wait... this is starting to get back
to that common sense thing. ;-)
So.. maybe this is where more introspection has
to be. Is the "hostile environment", hostile to
a group of "average" workers. Uhm, average...
like... not part of an "outside interest group".
Is the hostile environment created by one or
more people? Common sense would say that if
a large majority... not simply over 50%, but
if the OVERALL "atmosphere" is hostile... then
maybe that's just the way it is? How is the
business running as a whole? Faltering? Smooth
as glass? If the business is a shambles, it
could be that the hostile atmosphere is backlash
at the cause of the downturn. Or the reflection
of overall negative business sentiment. If the
company is smoothly sailing... either holding
it's course or on an upturn, it could be that
a perceived hostile environment is simply,
an AGRESSIVE overall work attitude. Maybe it's a
sales company, and everyone is gung ho... lots
of hyperactivity. Speech might not be curtailed
in this type of place. Yet it could bother some
people, even though it is of no actual negative
consequence otherwise. What do they do? They
shouldn't be forced to seek other employment,
but is it fair for them to make everyone else
act unnatural? Couldn't that possibly make
the workplace hostile to those that were enjoying
it before??? Oh dear... now that's a tuff
nut.
And this is just from talking... words. Me
personally, I have never understood someone
who cannot stand to hear certain words. Even
if they are one of 'the seven'. They are all
just words. I wouldn't like to hear any word
said a hundred times in an hour of course,
even if it was Alabama or Duesenberg, hehe.
But one word, in a sentence? Infrequently?
To each their own, but that's a little weak.
Also a hostile environment could extend to
even worrying about your job security, or having
others heckle, make fun of, or criticize you
unduly. I think these would be more obvious,
and less likely to be subjective. These are
also as far as "common sense" goes, probably
not going to be acceptable anywhere.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
As far as the concept, if a hostile workplace
is morally acceptable.
[ http://www.dictionary.com/cgi-bin/dict.pl?term=morally ]
mor·al (môrl, mr-) adj.
Of or concerned with the judgment of the goodness
or badness of human action and character.
morally \Mor"al*ly\, adv. 1. In a moral or ethical
sense; according to the rules of morality.
I think this would hinge upon the decision
of whether the environment was actually
hostile overall and not in particular to just
one person or group. If the perceived hostile
environment is not a detriment and is not
a negative thing as far as the business
operations and not directed, it would seem
that the people who are part of the "atmosphere"
exist "in their minds" in a morally acceptable
righteousness. This requires a careful weighing
of whom might feel negatively to this. How can
the moral righteousness exist if someone's
rights are being impeded? Whose rights
become modified to make things morally
acceptable to a minority. Is this action
against the perceived hostility morally
acceptable if it interrupts a smoothly
running workflow?
Is this hostility an overall action
or reaction to an individual or group?
Is this hostility something that could be a
possible unlawful discrimination? That
would definitely not be morally acceptable.
The moral acceptability of the hostility
would have to be based on the consensus
of the people existing in the environment
that has the hostile atmosphere. This
determination of morality should not be
made by outsiders. This is because in the
workplace the individual feeling of the
moral righteousness will differ. Person
to person all people have different moral
values.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Is the concept of hostility in the workplace
so subjective that it cannot have guidelines?
No, of course not. It is relative though. The
particular office, job site, or workplace should
should be a starting point for determining the
overall atmosphere. If you are working as a
mechanic... on jet engines... on hot parts...
sharp metal... there are going to be expletives
said. Can a truly thin-skinned person work at
this place and stand offended when someone
whacks their knuckles and lets loose with a
string of expletives? Can someone who is used
to a calm, smooth workflow, be allowed to
feel their environment is hostile because it
involves alot of pressure to get their job
done? Lets say it's a big contract, and the
timeframe is tight, schedules are strict,
and deadlines are happening left and right.
Nerves are raw, tensions high, stress frothing
over. This is probably a hostile environment.
Nothing subjective about it... I can feel the
tension, and this place only exists in my mind.
Can someone claim this hostility is undue?
Can they say they are not happy? Wouldn't this
possibly be something they have to take care
of themselves? Maybe a job change?
If another person is in a office that has a
weekly workflow, maybe an accounting office.
Deadlines are the same dreary thing week to
week, month to month. Bills in, bills out,
paychecks here, phone calls there. Is any
type of hostility acceptable here? Doesn't
appear to be a stress environment, but yet
someone is yelling... impatient, using
profanity, etc. Maybe throwing things? Or
saying negative things to underlings and
others. I see a problem person. This is
not a place for this type of attitude. The
people at this place probably recoil at
the antagonists presence. No one needs to
even study this situation to know it's out
of order. This hostility is subjectively
not acceptable.
The idea of making an open environment,
one that is friendly, and not restrictive...
is great. But I think this will get back
to the "common sense" idea. If everyone
had common sense, they would EASILY pick
up on who is not comfortable with what.
A person who is compassionate about others
would then self regulate themselves. At
least in the presence of that person, or
persons. Maybe they are thinking in their
head, well if that person doesn't like the
way this place is, "common sense" would
tell them to find a new job. While the
person who is upset with the environment
is thinking is it morally acceptable for
these other people to be acting in this
hostile fashion?
Maybe the perfect way to take care of
problems before they arise, is the
employee contract. Very specifically
state what is NOT acceptable. It might
leave loopholes, but it's not been written
in stone. It can be a living evolving
thing to be the fairest for all. What about
those that sign an old contract and
don't agree with the new contract revisions?
Um, that's probably another question.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
A little look at what California has to
say about "hostile workplaces"
[ http://216.239.35.100/search?q=cache:k0D9N4Ner-IC:www.alawyer4u.com/articles.htm+%22What+constitutes+a+hostile+workplace%22+hostile+workplace&hl=en&ie=UTF-8
]
"Beginning in the late 1970's and continuing
through the 1980's, California Labor Law expanded
to include new terms and causes of action for
employees. "Wrongful Termination" developed with
the passage of the Fair Employment and Housing Act
(FEHA) Gov. Code § 12940 et seq. Terms like
"sexual harassment", "disparate impact", and
"discriminatory intent" became important buzzwords
for employment litigators. Additionally, a more
subtle term came to light: "hostile work
environment". While terms like sexual harassment
and disparate impact were quickly defined through
case law, little was made of the hostile work
environment. While employment attorneys and their
clients used the term, it was always as a
secondary descriptive term such as "her supervisor
repeatedly sexually harassed her, causing her
exceptional emotional distress and creating a
hostile work environment."
It was not until the mid 80's that the term
'hostile work environment' became an actionable
cause of action of its own. The seminal California
case was Fisher v. San Pedro Peninsula Hospital,
(1989) 214 Cal.App.3d 590, 262 Cal.Rptr. 842. In
Fisher, the Second District Court of Appeals
defined precisely what a hostile work environment
was. After the trial court's granting of the
defendant's demurrer, the Court of Appeals held
that under certain circumstances, the creation of
an offensive or hostile work environment could
violate FEHA whether or not the employee actually
suffers any tangible job detriment."
"California Courts have begun to narrow and define
what constitutes a hostile workplace by
eliminating what does not qualify. The Court in
Etter v. Veriflo, (1998) 67 Cal.App.4th 457, 79
Cal.Rptr.2d 33, held that harassment [here in the
form of racial harassment] must not be
"occasional, isolated, sporadic, or trivial".
Again the California Courts looked to federal case
law for guidance. The federal case of Faragher v.
city of Boca Raton, (1998) 524 U.S. 2275 held that
the conduct must be extreme: "simple
teasing,...off-hand comments, and isolated
incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and
conditions of employment"
Other cases have held that isolated or trivial
incidents do not constitute a hostile workplace
environment:
Jones v. Flagship, 793 F.2d 714 - a supervisor's
two suggestive remarks and a single proposition of
plaintiff;
Rabidue v. Osceola Refining Co, (6th Cir. 1986)
805 F.2d 611 - even though a co-workers was
extremely vulgar and crude and in confrontational
posture with plaintiff and nude photos were
present, the totality of the workplace was not
affected.
Scott v. Sears, Roebuck & Co., (7th Cir. 1986) 798
F.2d - isolated winks, suggestive remarks and a
co-worker's single request for a date with the
plaintiff did not constitute a hostile work
environment.
Dowes v. F.A.A., 775 F.2d 288- defendant engaged
in mildly offensive verbal conduct on three
occasions and twice touched plaintiff's hair.
As a general rule, the frequency of conduct which
is required to cause a hostile workplace
environment is inversely proportionate to the
severity of the conduct. Thus, a single very
serious incident such as a physical assault or
attack may serve to create a hostile environment
while constant jibes or innuendo may not."
-------------------------
Ahhh, the wisdom of the legal system. Isolated
or trivial incidents do not constitute a hostile
workplace environment. A single serious incident
may outweigh many smaller indiscretions. That's
a good concept.
-------------------------
"In marked contrast to a direct harassment or
discrimination cause of action, a hostile work
environment claim does not require that the
plaintiff actually be harassed personally or that
they suffer any tangible ill effects from
discrimination or harassment."
"Direct physical or verbal harassment of the
plaintiff or tangible economic damages are not
required for the plaintiff to prevail, the numerous
and varied holdings of the extremely recent
decisions above make it clear that this hostile
workplace environment will remain a cause of action
in a state of evolution for some time to come."
--David J. Salvin maintains a private solo practice
in South Orange County. While maintaining a general
practice client base, David deals heavily with
employment, wrongful termination and labor law.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
More court rulings on hostile work environments:
OTHER TYPES OF CONDUCT PRECLUDED
Statements, Gestures, Cartoons or Innuendo
[ http://216.239.35.100/search?q=cache:U20lJQf1LsEC:parma.com/resources/library/liability/hostile_work.html+%22What+constitutes+a+hostile+workplace%22+hostile+workplace&hl=en&ie=UTF-8
]
"The next Supreme Court case on Hostile Work
Environment was Harris v. Forklift Systems. Teresa
Harris filed a Title VII action claiming the
conduct of the company president, Mr. Hardy,
constituted an "abusive work environment". The
plaintiff claimed that Hardy often insulted her and
made her the target of unwelcome sexual innuendoes.
He would say things like "You are a woman, what do
you know". He suggested that they go to Holiday Inn
and "negotiate" her raise. He threw objects on the
floor and had Harris and other women pick them up.
He made sexual innuendoes about Harris's and other
women's clothing.
When Harris subsequently complained, Hardy
expressed surprise, apologized and promised he
would stop. Based on this assurance, Harris stayed
on the job. Hardy's resolve to reform lasted a
couple of weeks and then he was back to the sexual
comments, slurs, and jokes. When Harris negotiated
a good deal with a customer, Hardy asked, "What did
you do, promise to sleep with him next Saturday
night?" Harris quit and sued.
When the case was heard in the District Court (the
trial court), the judge dismissed the case because
there was no evidence of severe psychological
injury as a result of the conduct. The plaintiff
appealed. In one of the quickest opinions in the
history of the court, the U.S. Supreme Court
unanimously held that severe psychological injury
was not required and that the test for liability
should be whether the conduct would be offensive to
a reasonable person."
"The Court stated in its opinion that repeated
slurs, sexual innuendo, dirty jokes, cartoons, put
downs, sexual bragging, and other verbal conduct
over time can detract from employees' performance,
discourage employees from remaining on the job, or
keep them from advancing their careers or can
create an abusive and offensive environment. The
court held that an environment of this nature can
create liability. The Court also pointed out that
its reasoning in the sexual harassment applies
equally to race, national origin, religion, gender
and other federally protected classifications in
the workplace. The creation or tolerance of an
abusive or hostile work environment will result in
liability.
In order to determine whether a hostile work
environment has been created, the courts will look
to the frequency and the severity of the conduct or
utterances, whether the conduct is physically
threatening or humiliating, or merely offensive,
and whether the conduct unreasonably interferes
with the work performance. The court may also
consider the psychological effect on the employee
in determining whether the employee actually found
the environment abusive. No single factor is
required.
The standard applied is twofold. First, the
plaintiff must show that he or she found the
conduct offensive. Second, the jury or court must
decide whether a reasonable person in the
plaintiff's position would find it offensive. The
reasonable person standard is applied to preclude
liability to persons who are hypersensitive to
normal human behavior.
What ultimately happens is that what a "reasonable"
person would find to be offensive is determined by
a lay jury. As Justice Scalia commented in his
concurring opinion, "As a practical matter, today's
holding lets virtually unguided juries decide
whether sex-related conduct engaged by (or
permitted by) an employer is egregious enough to
warrant an award of damages." Scalia was not happy
with this method but was aware of no alternative
method of establishing a standard by which such
conduct could be redressed."
-------------------------
I can't post too much of the original document here,
so give it a read. That part is pasted is about halfway
down. I left the URL as a cache copy so it would be
highlighted.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
The government gives some really strong points to
define what is and isn't a hostile workplace. I
hope that in addition to my comments will answer your
questions thoroughly. If you need me to clarify
any of my comments, just ask for a clarification
before accepting the answer.
-search techniques-
"What constitutes a hostile workplace" hostile workplace
[ ://www.google.com/search?num=20&hl=en&lr=&ie=ISO-8859-1&safe=off&q=%22What+constitutes+a+hostile+workplace%22+hostile+workplace
]
code of business conduct
[ ://www.google.com/search?q=code+of+business+conduct ]
"business etiquette" -japan -asia
[ ://www.google.com/search?q=%22business+etiquette%22+-japan+-asia&num=20&hl=en&lr=&ie=ISO-8859-1&safe=off
]
"morally acceptable" workplace
[ ://www.google.com/search?num=20&hl=en&lr=&ie=ISO-8859-1&safe=off&q=%22morally+acceptable%22+workplace
]
proper business attitude
[ ://www.google.com/search?q=proper+business+attitude ]
proper business conduct
[ ://www.google.com/search?num=20&hl=en&lr=&ie=ISO-8859-1&safe=off&q=proper+business+conduct
]
seven dirty words
[ ://www.google.com/search?num=20&hl=en&lr=&ie=ISO-8859-1&safe=off&q=seven+dirty+words
]
thanks for letting me answer this
for you
-AI |
,
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