What Behaviors are Considered Criteria for a Hostile Work Environment?

Request Consultation

A hostile work environment claim is a workplace discrimination claim under both Maryland and federal law. The complainant must prove (i) discrimination based on race, gender, sexual orientation, ancestry, national origin, color, religion, pregnancy, age, or disability, and (ii) the conduct must have been severe or pervasive enough to constitute abuse. 

What Exactly Constitutes a “Hostile Work Environment”?


The determination of what constitutes a ‘hostile work environment’ is not highly fact-dependent – in other words, it is subjective. The following factors operate as reasonably accurate guidelines, however.

  • The behavior involves discrimination based on membership in a protected class – gender, race, etc. as detailed above. Sexual harassment is definitely included within this scope. In fact, it is one of the most commonly asserted bases of hostile work environment harassment. Maryland state law also prohibits marital status discrimination
  • The hypothetical ‘reasonable person’ would find the behavior abusive or hostile. What this means in practice is that someone who is hypersensitive will have trouble maintaining a claim if the average person would not have found the behavior offensive.
  • The conduct is pervasive. In other words, it is continuous or long-lasting enough to be considered to be a relatively long-lasting feature of the workplace. A single instance of offensive behavior generally won’t qualify as a ‘hostile work environment’ even though, depending on its nature, it might be illegal on other grounds (intentional infliction of emotional distress, defamation, quid pro quo sexual harassment, etc.).
  • The employer did not adequately investigate or remedy the offensive behavior.
  • The behavior distresses the victim enough to adversely affect their work and/or their emotional well-being at work. No economic or professional consequences (demotion, termination, etc.) have to be proven, although proving such consequences could certainly strengthen a claim.

Identity of the Perpetrator

The perpetrator can be:

  • the victim’s supervisor;
  • a supervisor in another department;
  • an agent of the employer;
  • a co-worker; or 
  • a non-employee, such as a contractor, intern, or regular visitor.

Identity of the Victim

The victim can, of course, be the person who is being harassed, but could also be anyone else affected by the behavior.

COVID-19 and the Hostile Working Environment

The Occupational Safety and Health Act of 1970 states that an employer:

“[S]hall furnish to each of his employees’ employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…”

An ill employee still working in their office.If your employer has not taken steps to protect you from the COVID-19 disease by frequently sanitizing work areas, limiting person-to-person contact by expanding or redesigning work areas or providing personal protection equipment, then they are in violation of OSHA. This amounts to a dangerous workplace and employees are not expected to simply endure this type of danger to their health. You have every right to demand the protection you need before returning to work without fear of retaliation or termination.

If you need to enforce your rights with your employer for your protection; if you have been retaliated against for demanding a safe work environment; or if you have been wrongfully terminated because of your fear of working in an unsafe environment, we can help.

Contact an attorney at the Smithey Law Group, LLC, today! We have many years of combined experience in employment law, and we can take action if you have been retaliated against or terminated for insisting on a safe work environment.

Hypothetical Examples

A hostile work environment can be created by behaviors such as:

  • Sharing sexual photos (not limited to pornographic images); discussing sex acts or using sexually suggestive language; making sexual comments, jokes or gestures; or asking sexual questions. This behavior may be directed towards the victim, or it may simply take place in the presence of the victim;
  • Posting sexual posters on the wall of a cubicle;
  • Inappropriate touching, especially of an obvious sexual nature;
  • Invading the victim’s personal space in a sexually suggestive or threatening manner;
  • Telling offensive jokes (racist jokes, for example);
  • Offering unwanted comments about someone’s appearance;
  • Using ethnic slurs or highly insensitive language;
  • Sabotaging an employee’s work;
  • Setting up a Facebook group to shame a colleague; and
  • Posting inappropriate photos of a colleague on the internet (even while off-duty).

It is impossible to list every possible behavior that might justify a hostile work environment claim, at least if it is pervasive enough. The law is still developing in this area, resulting in significant uncertainty.

Employer Defenses

An employer, facing a hostile work environment claim even after abusive behavior has been proven, may defend their side by asserting that it made reasonable attempts to correct the behavior and prevent future instances of misconduct. However, the employee failed to take advantage of reasonable opportunities provided by the employer to correct or prevent the behavior.

Illustrative Example: Benny Boyd Auto Group

In 2015, the U.S. Equal Employment Opportunity Commission (EEOC) found the Benny Boyd Auto Group liable for discriminating against one of its employees by subjecting him to a hostile work environment. The following are the details of the case:

  • In December 2010, Randall Hurst was offered the position of General Manager and Partner of the Lubbock, TX, Benny Boyd dealership (since the claim was filed under federal law, it doesn’t matter that the events did not take place in Maryland).
  • In May 2011, Mr. Hurst was diagnosed with multiple sclerosis (MS). He notified Benny Boyd’s management of this diagnosis.
  • Mr. Hurst continued working, but nothing more was said about his promotion. When he asked about it in March 2012, he received insults concerning his disability, including questions such as “Are you a cripple?”, along with a threat that he would soon be fired because of his disability.
  • Mr. Hurst resigned in November 2012 and filed a complaint with the EEOC, alleging hostile work environment discrimination.
  • The EEOC filed a claim against Benny Boyd on behalf of Mr. Hurst.

Mr. Hurst ended up settling for $250,000. The EEOC also insisted the Benny Boyd take the following actions:

  • Amend its discrimination policy to specifically forbid disability discrimination;
  • Provide employee anti-discrimination training; and
  • Post a conspicuous written notice in its premises that prohibits disability discrimination.

The dealership failed to comply with these requirements – instead, it closed down. It will have to comply with these requirements if it ever opens again. 


Your first action against a hostile work environment should be to take up the issue with your employer. You will be expected to do this way before filing a formal complaint, unless there is a very good reason not to. If that doesn’t work, you have 180 days after the last incident to file a discrimination complaint with the EEOC. 

If the problem is not resolved within six months one way or the other, you should discuss other possibilities with your lawyer, including the possibility of filing a civil lawsuit against your employer or the perpetrator.


An employer sorting out unresolved problems in the company.An employer may not retaliate against an employee for raising a hostile work environment claim. Retaliation is a separate charge that can be pursued, even if the original hostile work environment claim is dismissed.

The Clock Is Ticking

The sooner you press your claim, the better your chances will be. If you believe that you may have been the victim of a hostile work environment, or if you are an employer who fears that an employee will assert such a claim, call Smithey Law Group LLC at (410) 919-2990 or contact us online. We serve clients in Annapolis, Baltimore, Columbia, Dundalk, Frederick, Germantown, Glen Burnie, Rockville, Silver Spring, and Waldorf.

Author Photo
Joyce Smithey, a seasoned employment and labor law attorney, has over 22 years of experience representing both employers and employees in Maryland and D.C. Her practice, rooted in a deep understanding of employment law, spans administrative hearings to federal litigation. Joyce's approach is comprehensive, focusing on protecting client interests while ensuring legal compliance. A Harvard graduate, her career began in Fortune 500 companies, transitioning to law after a degree from Boston University School of Law. Joyce's expertise is recognized by numerous awards, including Maryland’s Top 100 Women. At Smithey Law Group LLC, which she founded in 2018, Joyce continues to champion employment rights, drawing on her rich background in law and business.

Read More Articles by Joyce Smithey