First, the hostile work environment must be attributable to a “protected category”—namely, the employee’s race, gender, sexual orientation, religion, national origin, disability, or age. A general “hostile work environment”—for example where a supervisor or co-worker treats the employee poorly (e.g. bullying) due to any reason other than those listed above—is not legally actionable.  While most companies have a policy prohibiting hostility in the workplace, even if the hostility is unrelated to a protected category, that does not make actions that violate this policy legally actionable.

Second, the hostile work environment needs to be either severe or pervasive (happens often). Generally, the more severe the incident(s), the less pervasive they need to be and vice versa.  In fact, even a single severe incident may be sufficient.  More often than not, that single event will involve either inappropriate touching, or inflammatory language, like a racial slur.  However, less severe conduct can be a hostile work environment if it is pervasive (happens often).  For example, if a supervisor or co-worker makes inappropriate comments related to an employee’s race, gender, sexual orientation, religion, national origin, disability, or age several times over a relatively short period (often a year or less), then that may be the basis of a legally viable “hostile work environment” claim.  But a single event that is insufficiently severe will be insufficient to win a “hostile work environment” lawsuit.

Third, the employee sues their employer, not the individual who harassed them.  The employee sues their employer, not the individual, for two reasons: (1) most federal laws prohibit employees from suing the individuals who create a hostile work environment; and (2) the individual who created the hostile work environment is likely judgment proof (in other words, chances are they don’t have the money to pay the employee what they are owed).  For that reason, it’s absolutely essential that an employee makes their employer aware, in writing, of the hostile work environment created by a co-worker before their employment ends. 

Fourth, the employee must make their employer aware of a co-worker creating a hostile work environment—preferably in writing. There is no legal requirement to report supervisor harassment to the company, but it is still the best practice because it creates additional evidence that the employer was aware of the harassment for trial.  Under the law, the employer must have an opportunity to remedy co-worker harassment before they can be held legally liable.  If the employer doesn’t know about the hostile work environment, it can’t remedy it and, in turn, cannot be held legally liable.  In short, if the employer fails to stop co-worker harassment after they are made aware of it, the employee may have a valid lawsuit.

First, if an employee opposes unlawful activity (a “protected activity”), the employee is protected against retaliation. In other words, if the employer terminates the employee because the employee opposed unlawful activity, the employee may have a valid retaliation case.

Second, if an employee reports or otherwise participates in an investigation into unlawful activity (also a “protected activity”), the employee is protected against retaliation. In other words, if the employer terminates the employee because they reported or assisted in the investigation of unlawful activity, the employee may have a valid retaliation case.

Third, the timeline between the “protected activity” and the “adverse employment action” (e.g. a termination, demotion, or failure to promote) is incredibly important. It’s exceptionally rare that an employer openly admits it fired an employee in retaliation for engaging in a “protected activity.”  However, if the employer terminates an employee soon after they oppose or report unlawful activity, the chances of proving retaliation goes up exponentially.  In other words, if there is only a one-week gap between the employer discovering the “protected activity” and the employee’s termination, it is much easier for a jury to conclude retaliation was the cause for termination than if the gap is one year.

First, proving discrimination cases is an uphill battle. Few people are openly racist, sexist, or ageist anymore.  Therefore, the vast majority of discrimination cases must be proven circumstantially. In other words, if a judge or jury were to consider all of the circumstances together, they would conclude that the employer terminated the employee because they are a member of a “protected category”—specifically because of the employee’s race, gender, sexual orientation, religion, national origin, disability, or age.  This makes discrimination cases very labor intensive, as discussed below.

Second, patterns are crucial. The employee’s attorney needs to discover and develop as many instances of differential treatment between employees in the “protected category” (e.g. women or African-American employees) and employees outside of the “protected category” (e.g. men or Caucasian employees) as possible.  If the employee’s attorney fails to discover or develop these instances of differential treatment, the case will often be dismissed by a Judge short of trial at a stage called summary judgment.

Third, the position of the discriminator is crucial.  Only supervisors can terminate an employee, co-workers cannot.  Therefore, if an employee wants to prove they were fired because they fall within a “protected category,” they must prove the supervisor discriminated against them, not a just co-worker.  If a co-worker, and a co-worker alone, discriminated against another employee, then the employee may have a harassment case (assuming the employee reported it to their employer), but the employee likely does not have a discrimination case.

The answer is part math, part art.

Let’s start with the math.  The first category of damages is lost wages. There are two categories of lost wages: (1) back pay—lost wages and lost benefits—like annual leave, sick leave, health insurance, and retirement contributions—from the time of termination through the end of trial; and (2) front pay—lost wages and lost benefits from the time of trial onward. For example, an employee earned $50,000 (including salary and benefits) a year and never received any raises.  The employee was terminated on July 1, 2020, and the trial ends on July 1, 2022 (two years later).  The employee’s “back pay” would be $100,000.  If the employee were to prevail at trial, and a Judge decides they are entitled to front pay for another year after trial, they would be entitled to another $50,000, for a total of $150,000 in lost wages. 

However, the employee has a duty to mitigate (or minimize) their lost wages by seeking and accepting comparable employment with another employer.  If the employee finds comparable employment exactly one year after their termination, and that employment also pays $50,000/year, then the employee is only entitled to $50,000 in lost wages (or one year’s salary).  If the employee accepts a new job that pays $40,000/year one year later, they would be entitled to $50,000 (one year’s salary) plus $10,000/year (the difference between their pay at their old employer vs. new employer) for as long as the Judge decides is necessary to make the employee whole.

Now for the art.  The second category of damages is compensatory damages, which are often referred to as pain and suffering. The EEOC considers the following categories: (a) emotional pain and suffering, (b) inconvenience, (c) mental anguish, (d) loss of enjoyment of life, (e) injury to professional standing, (f) injury to character or reputation, (g) injury to credit standing, (h) loss of health, (i) fright, (j) shock, (k) humiliation, (l) indignity, (m) apprehension, (n) marital strain, (o) loss of self-esteem, (p) anxiety, (q) depression, (r) loss of respect of one’s friends and family, (s) isolation, and (t) grief. Obviously, different people will assign different values to each of these categories, and it takes a skilled trial attorney to maximize the value a jury assigns to each category.

There are two values for every case: the trial value and the settlement value.  The trial value will be some range of values from $0 (meaning the employer wins) up to some number that exceeds the settlement value of the case.  No two juries are alike, so the trial value isn’t a set number, but should be thought of as a range of numbers with an average value. 

That average trial value = the fair settlement value of the case.  To provide an oversimplified example, imagine this exact case was tried to 100 different juries and we estimate that 50% of the time the employer wins (meaning a $0 verdict), and 25% of the time the jury returns verdicts of $200,000, 25% of the time they return a verdict of $1,000,000.  The average trial value of the case is $300,000 (25 x $1,000,000 = $25,000,000; 25 x $200,000 = $5,000,000; $30,000,000/100 trials = $300,000).  Therefore, a settlement of $300,000 would be a fair to all parties. 

It’s important to note that both the average trial value and the likelihood of success are estimates, not certainties.  In other words, no attorney can say that the average trial value is definitely a specific dollar amount (e.g. $1,000,000) and the likelihood of success is definitely a specific percentage (e.g. 50%). However, experienced attorneys who actually try cases get better and better at estimates both of these values.