By Stephen M. Raffle, M.D.

A hostile work environment arises when a worker experiences physical threats, unwelcome sexual advances, humiliation, or other unspecified egregious behavior on the job. The effect of the experience must affect the employee’s psychological well-being and the way in which the employee works. If the employee does not experience the “hostile” acts as abusive, then the conduct has not actually altered the work environment and the workplace is not considered hostile for legal purposes, i.e., no offense has occurred. Thus, a particular act may cause one person to experience a hostile work environment because a particular conduct has altered the work environment for that person whereas another person may remain unfazed.

The definition of unwelcomeness I use is “behavior not incited or solicited.” This definition is directly linked to attitudes and expectations by the aggrieved party and becomes part of the basis of my evaluation. If I am evaluating an employee for fitness for duty and he/she is said by others to have engaged in threatening, bullying, sexual touching, or other unwanted or unsolicited behavior, then I may have a person who is creating a potentially hostile work environment. If the examinee denies the behavior, then I must examine him/her for underlying psychopathology to assess the level of reality he/she is operating in (reality testing). The person may feel justified in the behavior due to a belief the object of attention wants it, e.g. a sexual relationship. Also I must consider the idiosyncrasy of the person I’m examining, especially in civil litigation, but also in fitness for duty exams. For example, one person may claim a hostile work environment and harassment because a co-worker chews and cracks gum. Such hypersensitivity doesn’t create an abusive work environment. To determine “idiosyncrasy,” I try to apply a “reasonable person” test to the alleged wrongdoing and complaint.

One “take away” from all of these parameters and perspectives is that too often employers who seek a fitness-for-duty exam for an employee vis-a-vis the employee’s ability to work, fail to consider that his/her identified behavior may be creating a hostile work environment for co-workers or supervisors.

DISCLAIMER: The information provided on this website does not constitute legal advice. Readers should consult with their own legal counsel for the most current information and to obtain professional legal advice before acting on any of the information presented.

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