Question: Hi, Alan. I am planning to resign after 14 years as an employee and 7 years freelance for my company.

For a long time I had been managing an extremely difficult employee with very little support from HR, and dealing with her wrath for years. The employee openly discussed with our colleagues her intention to sabotage my career (and that of my boss) as a result of feedback I had given on her performance review. She insisted on having HR conduct an investigation into the credibility of the performance review, and HR determined that it was accurate.

I reached out to HR on numerous occasions to voice my concerns but was always warned against engaging in anything that might look like “retaliation.” I have felt worried for my personal safety and that of my family because of this person. She tried to accuse a co-worker of sexual harassment and me of having been present when inappropriate comments were made. She wound up backing back from that.

I no longer manager her but I feel she is extremely unprofessional and creates an atmosphere of negativity. I spent countless hours over the years discussing how we could get rid of her! Time has passed, and now she is over 40, a minority and female, so I feel she has become a triple threat to the company.

I met with HR last week and let them know that I feel it is time for me to move on due to the circumstances. I am waiting to resign until I hear back from them. Do you think I will be able to leave and collect severance based on the fact that I have been working in this hostile environment?

Any advice would be greatly appreciated.   

Carey P.
Gillette, New Jersey

Answer: Dear Carey:       

Your question is quite welcome, because it gives me a good opportunity to explain a few things about an important subject that many people don’t understand.    

1. Legally speaking, in order to have a “hostile work environment,” it must arise in the context of illegal discrimination based on race, gender, age, or other “protected category.” Though many people don’t know it, legally speaking, a “hostile work environment” can only arise in the context of illegal discrimination, when one or more persons act in a hostile or abusive fashion against one or more other people due to the latter’s race, gender, age, national origin, religion, disability, or membership in some other protected category.

It may be surprising, but 100% of the population has the same protection; not just so-called “minorities.” For example, a 24-year-old white Christian male cannot be discriminated in any aspect of employment against him due to his gender, his religion, or his race, and it is illegal for him to be treated in a hostile or abusive manner because of his gender, religion or race.

But, unless the motivation for the bad treatment is that the employee is a member of, or associated with, one of the “protected categories,” such as gender, race, religion, etc., then we don’t have – legally speaking – a “hostile working environment.”

2. And, legally speaking, you need to have “severe” hostility, not inconvenience or obnoxiousness. Frankly, Carey, I don’t think what happened to you would rise to the level of “hostile work environment.” This is how the U.S. Supreme Court described a “hostile work environment”: a workplace “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of employment were thereby altered.” This is how I have described it: “so hurtful and harmful so as to make the workplace not a place where one can work.” I don’t see what happened to you fall to that low level.

3. That said, more and more states are passing laws giving employees legal rights against hostility, bullying and “mobbing” behavior at work. So far we have only discussed “hostile work environment.” More and more states are considering enacting laws to prohibit hostility and bullying even outside the context of discrimination against a person in a protected category. In your home state of New Jersey a bill to create such a law was introduced in 2007, but it has not yet passed the New Jersey legislature.

4. And, too, many companies have broader notions of unacceptable “hostile” or “bullying” conduct. More and more companies are instituting policies prohibiting hostility of any form against any employee. I would suggest you find out if your employer has instituted such a policy. If so, and Human Resources did not act to protect you from this employee, that might be considered leverage to insist on severance.

5. Incidentally, State Unemployment Officials are not bound by legal definitions, or by company guidelines, but by their own sense of “unacceptability.” Unemployment benefits are granted to those who lose their job due to no fault of their own, or those who leave their jobs for a “good reason.” The definition of “good reason” is up to the individual clerk, or hearing officer, but is usually limited to such things as fear for one’s safety, or substantial abuse.

Carey, while I don’t expect this is what you were hoping to hear, it is my frank assessment of your situation. It is presented to help you evaluate your situation, and take the smartest steps in response. Thanks for writing in.

Best, 
Al Sklover

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