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Can At-Will Employees Claim Hostile Work Environment?
An employer can fire an at-will worker for almost any reason, at any time. Discrimination is an exception. Firing a worker because she's female, black or Jewish, for instance, is illegal even if she was working at-will. Subjecting an at-will employee to a hostile work environment also breaks the law.
Hostile Work Environment
Federal labor law bans workplace harassment based on religion, gender, race, nationality and other factors. If the harassment is severe or pervasive enough that a reasonable person would find the workplace environment, "intimidating, hostile or abusive," the company could be breaking the law.
•Anyone affected by the offensive conduct can be a victim of harassment, not just the harasser's target.
•The harasser doesn't have to be a boss or supervisor — it can be a co-worker, a supervisor who isn't directly over the victim, or a client.
•Harassment doesn't have to involve any economic harm such as getting fired or losing a raise. To be illegal, it does have to be something an employee can't stop without losing or changing his job.
"Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance." — Equal Employment Opportunity Commission
At-Will Employee Rights
Working at will doesn't erase an employee's legal rights. An employer can't, for example, demand at-will workers operate without legally required safety equipment or that they accept pay beneath the minimum wage. At-will employees likewise have the same rights to be free of harassment as an employee with a contract.
If an at-will employee reports harassment, files a discrimination charge with the government, testifies or participates in a harassment case or otherwise exercises his legal rights, employers are not allowed to retaliate. Firing an employee for reporting a hostile work environment is illegal. So is making the work environment so hostile that the whistleblower has to quit.
Dealing With Discrimination
If you're the victim of harassment, a good, though uncomfortable, first step in dealing with it is to ask the harasser to stop. The request proves that his behavior was unwelcome, which is important. In sexual harassment cases, for instance, the harasser often claims his target welcomed the treatment.
Once you decide to stop the harassment, keep a written record of your actions: what you said or did, when you did it and the responses from the harasser, HR, your supervisor and anyone else you talk to. Include copies of any written documents or emails. If you have to take legal action, the record is an important part of your case.
If the workplace environment doesn't change, follow company procedure for reporting harassment. If there are no guidelines in the employee handbook, ask HR how to go about it, or go straight to your boss if there's no HR department. To hold your company legally liable, you have to show the company knew about the problem, and that you followed the correct procedure for filing a complaint.
The company may deal with the problem. If it doesn't, you can take your complaint to the EEOC, or a state agency that handles employment complaints. The agency may not take action, but filing a complaint is a necessary step before suing your employer in court.
A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.