Part I of this series addressed the legal consequences for an organization of negligent hiring or negligent retention. These consequences generally result from a specific incident of physical or verbal violence on the part of an employee and the organization’s failure to prevent that incident. This week’s article explores the additional legal consequences of creating a hostile work environment or infliction of emotional distress. Liability can be found under these claims either in conjunction with a negligent hiring or retention claim and can also be found on its own, even if there has been no major precipitating incident.
Creating a hostile work environment is often associated with sexual harassment cases but has also been found in other cases where an employee has felt unsafe or otherwise harassed at work. The claim of creating a hostile work environment can be brought against both the organization and the problematic employee’s immediate supervisor(s), meaning those in management capacities can be faced with both institutional and personal liability. The specific definition of a hostile work environment varies by jurisdiction but generally it means that an employee is unable to properly perform his or her job due to certain behaviors by co-workers or managers.
Most jurisdictions have a process whereby an employee is first required to raise the issue with management or an internal human resources department before he or she can file a claim against the company. This process largely benefits organizations because, unlike the negligence claims discussed last week, liability can only be found if the problem has been brought to the organization’s attention. It does, however, place the burden on the organization to address the situation once employees have brought it to their attention.
A distinct claim, infliction of emotional distress, usually requires a finding of intentional actions on the part of supervisors or coworkers. A few American jurisdictions also allow claims of negligent infliction of emotional distress but these findings are far less common. Intentional infliction of emotional distress (“IIED”) was developed as a counterpart to an ordinary assault claim. An assault claim requires that there be at least an imminent threat of physical harm but did not cover situations where a perpetrator acted outrageously with the intent to shock or disturb a victim but did not pose an immediate threat. This could range from making a vague threat for sometime in the future (“I’m going to get you”), using insulting or vulgar language or from non-verbal actions such as “giving the finger”.
While IIED cases can only be brought against the perpetrator of the harm, not supervisors or management who were not involved in the altercation, an IIED claim against a co-worker could be used to bolster a hostile work environment claim and should be taken very seriously by organizations.
In addition, even if the complaint does not get to the legal stage, organizations can spend huge amounts of time on internal dispute resolution. Organizations with low civility spend an average of $115,000USD annually resolving formal complaints while organizations with high civility spent less than half that amount. Increasing civility would be expected to have a similar effect on legal costs for organizations meaning that investments in workplace civility can produce a quantifiable monetary return.