Is It Hostile or Discriminatory?

Employers and employees alike often misunderstand what actually constitutes discrimination. Many people assume an employer’s action is discriminatory, but the law protects only specific categories. Other actions — even unfair ones — may not legally be discrimination.

Protected Categories

State and federal laws set out protected classes, and the core ones are generally consistent. The Equal Employment Opportunity Commission (EEOC) protects the classes of race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability, and genetic information (including family medical history).

A Common Misconception About Age

People often assume all age discrimination is protected. It isn’t — age discrimination protections apply to those 40 or older. If an employer refuses to promote someone because they’re viewed as “too young” for added responsibility, that may be morally unjust, but it doesn’t constitute age discrimination under the EEOC if the employee is under 40.

What Actually Makes a “Hostile Work Environment”

A hostile work environment is a form of discriminatory harassment — and it’s widely misunderstood. Some employees believe a boss yelling at them or reprimanding them in front of others creates one. But a workplace isn’t legally a hostile work environment unless the employer’s behavior is related to a protected class. If an employer constantly yelled at an employee because the employer believed they were failing due to their race, age, or religion, that could constitute a hostile work environment. The conduct must be tied to a protected category — and it must be both objectively and subjectively hostile or abusive, or have actually altered the conditions of the victim’s employment.

What the Supreme Court Has Said

In Harris v. Forklift Systems, Inc., the Supreme Court clarified that determining a hostile work environment requires examining all the circumstances, including 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. As a practical matter, it’s generally easier to prove a discrimination claim than a hostile work environment claim.

Why It Matters for Employers

What an employee considers harassment or a hostile work environment may not prove those claims — but it may help prove other types of discrimination. Employers should be mindful of these distinctions and avoid careless comments or conduct that could be characterized as harassment or discrimination, along with the litigation that can follow.

Frequently Asked Questions

What counts as workplace discrimination?

Discrimination must involve a protected class — under the EEOC, that includes race, color, religion, sex (including pregnancy, sexual orientation, gender identity), national origin, age (40+), disability, and genetic information. Unfair treatment outside these categories generally isn’t illegal discrimination.

Is a boss yelling at me a hostile work environment?

Not by itself. A hostile work environment requires conduct tied to a protected class that is both objectively and subjectively hostile or abusive, or that alters the conditions of employment. General rudeness unrelated to a protected category usually doesn’t qualify.

Does age discrimination protect everyone?

No. Federal age-discrimination protection applies to employees 40 or older. Being passed over for being viewed as “too young” generally isn’t covered if the employee is under 40.

This article is general information from Accord & Shield Legal, PLLC and is not legal advice. Reading it does not create an attorney-client relationship. For guidance on your specific situation, please consult a qualified attorney.