Hostile Work Environment: Guide for Whistleblowers

Introduction

A hostile workplace makes an employee feel uncomfortable due to illegal harassment and discrimination based on protected characteristics, such as one’s race, religion, sex, age, disability, and more.

This harassment can take many different forms, ranging from physical threats, assault, or slurs to offensive jokes, name calling, and demeaning conduct. Hostile workplaces can exist in both the public and private sectors.

Hostile workplaces violate many federal employment laws, such as Title VII and IX of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act, and more. It also violates state laws where applicable.

Hostile Work Environment as Retaliation

A hostile work environment may also be a form of retaliation, or adverse action, that whistleblowers experience after blowing the whistle. For example, Mary is a federal employee who witnessed misconduct and made a whistleblower disclosure to her superiors. Shortly afterward, her boss denied her a promotion she was due for and placed her on a performance review plan, though her work ethic had not changed and remained exemplary. Her co-workers also began treating her coldly, making disparaging comments about her gender and race. After multiple unwarranted negative performance reviews, her employer suspended her without pay.

Many modern whistleblower laws, such as the Dodd-Frank Act, the Sarbanes-Oxley (SOX) Act, and others, contain anti-retaliation provisions that protect whistleblowers from hostile, retaliatory treatment. Whistleblowers who experience retaliation can file a case with a State or Federal Court or the U.S. Department of Labor (DOL).

Definition(s) of Hostile Work Environment

Textbook Definition

A hostile workplace is one where serious or consistent harassment and discrimination based on an employee’s protected characteristics, such as race, disability, gender, age, or sexual orientation, create a toxic or abusive working environment. Oftentimes, this persistent harassment negatively impacts an employee’s work performance, position, and mental health.

Legal Definitions

The U.S. Equal Employment Opportunity Commission (EEOC) defines a hostile work environment as a workplace where harassment based on an employee’s protected characteristics is so severe or frequent (“pervasive”) that a reasonable person in the employee’s position would find the situation to be abusive. The EEOC does not require the victim to prove that the harassment negatively impacted their performance or position for the treatment to qualify as a “hostile work environment.”

The Department of Labor similarly states that a hostile work environment is when harassment and discrimination from supervisors or co-workers regarding an employee’s protected characteristics is so severe or pervasive that a reasonable person would find that it creates an intimidating or offensive work atmosphere.

State Specific

Most states have their own laws protecting employees from hostile work environments or laws that protect whistleblowers from this kind of retaliation. These state-specific laws can be great avenues for seeking damages and redress. For example, under California Labor Code Section 1102.5, if an employer retaliates against a whistleblower, the whistleblower may be entitled to reinstatement, lost wages, and more. However, some states, such as Georgia and Montana, provide incredibly weak whistleblower protections under state laws, and Alabama provides virtually none. It is important to check your state’s protections and understand the scope of protections offered under them before deciding how to proceed with your case.

Examples of a Hostile Work Environment

Hostile work environments can be nuanced in both the public and private sectors. They can be retaliation against a person who reports safety concerns or goes against a company’s status quo, which generally consists of a culture of unethical behavior.
Here are a few examples:

Sexual harassment

Sexual harassment is offensive conduct related to a person’s gender or sexual orientation. This conduct can be unwanted sexual advances, requests for sexual favors or quid-pro-quo arrangements, or other verbal and physical actions of a sexual nature. It can also look like offensive, demeaning, or sexist comments about a person’s gender, regardless of the victim’s or perpetrator’s gender.

Sexual harassment is particularly volatile when there is a power imbalance between the victim and the harasser, such as when a supervisor or client makes offensive or violent remarks. Warning signs of sexual harassment can include comments about your body or attire, inappropriate touching, online stalking, or repeated requests for a date.

Racial harassment

Racial harassment is discriminatory and offensive conduct based on a person’s race, ethnicity, or color. This conduct can include treating employees more or less favorably, making promotions or hiring decisions, or disseminating responsibilities based on an employee’s race.

Racial harassment can also look like offensive, derogatory language, such as the use of racial slurs, or persistent remarks about a person’s race, such as comments about someone’s characteristics associated with their race, like hair texture or facial features. Warning signs of racial harassment include a lack of diversity in the workplace – especially in positions of power – unequal pay, unequal disciplinary actions, preferential treatment, and racial stereotyping.

Religious harassment

Religious Harassment is treating an employee unfavorably due to their religious beliefs. This conduct can include hiring, promotion, or benefit decisions based on religious beliefs or offensive remarks regarding an employee’s religion or religious practices. It can also involve employers denying employees reasonable religious accommodations, as guaranteed under Title VII of the Civil Rights Act.

Warning signs of religious harassment in the workplace can include derogatory comments about employees’ religious beliefs, preferential treatment based on an employee’s religion, persistent questions about employees’ religious beliefs, and office dress codes that do not allow religious accommodations.

Discrimination

Discrimination is unwelcome, derogatory actions or remarks regarding an employee’s race, color, religion, sexual orientation, gender, nationality, or other protected characteristics. Harassment becomes unlawful when it is pervasive or severe enough that a reasonable person would consider it hostile, abusive, and intimidating.
Warning signs of discriminatory harassment include offensive jokes, slurs, name calling, physical threats of violence, preferential treatment, a refusal of accommodations, and more.

Bullying and Intimidation

Bullying and intimidation are unwarranted and unreasonable actions that cause an employee to feel discomfort and fear and are indicators of a hostile work environment. It often involves an abuse of power. Warning signs of bullying and intimidation in the workplace include persistent insults, put-downs, ridicule, and threats of harm or violence.

Verbal Abuse

Verbal abuse is hurtful and derogatory language directed at another employee, such as demeaning comments, slurs, threats, name-calling, mockery or other offensive language. It can be an indicator of a hostile work environment. Warning signs of verbal abuse are aggressive tones, raised volumes, public humiliation, the use of curse words, or mockery.

Physical Threats or Violence

Physical threats or violence are verbal, physical, or non-verbal actions that communicate a desire or intention to inflict bodily harm on another person in the workplace. Physical threats or violence can be indicators of a hostile work environment. Warning signs include the possession of a weapon, aggressive body language, or making direct threats to injure someone or their property.

Reporting Your Concerns

If you are a whistleblower who has experienced a hostile work environment, there are laws to protect your rights and offer compensation, whether that’s damages, reinstatement, etc. Below is an overview of some federal anti-retaliation laws and what they can provide.

For a complete overview of federal protections, consider purchasing a copy of “Rules for Whistleblowers: A Handbook for Doing What’s Right,” written by NWC co-founder and Board Chairman Stephen M. Kohn.

Employment Discrimination Laws

• OSHA: OSHA’s Whistleblower Protection Program enforces over 20 federal laws prohibiting employers from retaliating against employees for engaging in activities protected under those laws. OSHA will investigate whistleblower retaliation complaints and, if appropriate, order reinstatement, pay-pay, and other relief.
• First Amendment: The First Amendment of the U.S. Constitution protects public employees who blow the whistle on matters of public concern.
• Civil Rights Act of 1871: This Act provides protections for state and local government employee whistleblowers whose speech is also protected by the First Amendment. It permits federal court lawsuits for compensatory and punitive damages and relief. Additionally, the Act makes the conspiracy to interfere with the administration of justice in U.S. courts by retaliating against witnesses illegal. Employees may file these claims with U.S. District Court.
• Title VII and Title IX of the Civil Rights Act of 1964: These laws contain broad anti-retaliation provisions protecting employees oppose discriminatory practices or who participate in legal anti-retaliation proceedings.
• Civil Rights Attorney Fee Awards Act: This provision permits the award of statutory attorney fees in employment discrimination and retaliation cases filed under Title VII of the Civil Rights Act and the Civil Rights Act of 1871.
• Age Discrimination in Employment Act: See Title VII – Similar rights and procedures
• Americans with Disabilities Act: See Title VII – Similar rights and procedures
• Family and Medical Leave Act: See Title VII – Similar rights and procedures

Workplace Discrimination Labor Right

• Fair Labor Standards Act (FLSA) / Equal Pay Act, Nonretaliation Provisions: Employees who suffer retaliation for filing FLSA complaints may file claims either in federal court or with the Department of Labor within two years of an adverse action.
• Longshore and Harbor Workers’ Compensation Act: Anti-retaliation law under Maritime Workers’ Compensation Law protects employees who testify in proceedings or file claims. Employees may file complaints with the U.S. Department of Labor.
• Migrant and Seasonal Agriculture Workers Protection Act, Nonretaliation Provisions: This law prohibits retaliation against migrant or seasonal agriculture employees who raise concerns or make a whistleblower disclosure.
• National Labor Relations Act (NLRA) Nonretaliation Provisions, Unfair Labor Practices: The NLRA prohibits retaliation against an employee who has raised concerns or participated in a protected activity, such as forming or joining a union.
• Employment Retirement Income Security Act: This act prohibits retaliation against employees for participating in an ERISA retirement plan or blowing the whistle on ERISA violations.
• Employee Polygraph Protection: Anti-retaliation provision protecting employees who object to otherwise illegal polygraph examinations.

Private Sector Whistleblower Protections

• Dodd-Frank Act: The Dodd-Frank Act establishes anti-retaliation protections for whistleblowers under the Commodity Exchange Act (CEA), the Securities Exchange Act (SEA), and the Foreign Corrupt Practices Act (FCPA). It also establishes anti-retaliatory protections for whistleblower disclosures to the Bureau of Consumer Financial Protection.

  The Dodd-Frank Act makes it illegal for employers to terminate or discriminate against an employee who files, assists, or testifies in a qui tam case. Each agency has different degrees of compensatory damages to which whistleblowers who have faced retaliation are entitled.

• Commodity Exchange Act: Dodd-Frank established qui tam provisions within the Commodity Exchange Act (CEA) that protect whistleblowers from retaliation. Under the CEA, no employer can terminate or discriminate against an employee who files a qui tam claim, testified in a qui tam case, or assists a qui tam investigation. Employees must file their case directly in federal court within two years of the retaliatory action. Employees who suffer retaliation are entitled to reinstatement, back pay, special damages, and attorney’s fees and costs.
• Securities Exchange Act: The Dodd-Frank Act protects whistleblowers who report securities law violations to the Securities and Exchange Commission (SEC) from retaliation by their employers. These protections includes protection from being fired, demoted, or harassed for reporting wrongdoing. Whistleblowers who experience retaliation can file a lawsuit in federal court within three years of the retaliatory action. Additionally, the Act prohibits any action that prevents someone from directly contacting the SEC to report a possible securities law violation, such as enforcing confidentiality agreements that would hinder such communication. However, only the SEC can enforce this rule. Whistleblowers who prove retaliation may be entitled to double back-pay under the SEA.
• Sarbanes-Oxley Act: The Sarbanes-Oxley (SOX) Act Corporate Reform Law prohibits retaliation against whistleblowers who allege securities fraud. This law goes further than SEC anti-retaliation rules, prohibiting mandatory arbitration and providing protection for internal whistleblowers who make disclosures through company resources.
• Foreign Corrupt Practices Act: The Dodd-Frank Act instituted qui tam anti-retaliation provisions for whistleblowers reporting foreign corruption and bribery under the FCPA to the SEC. The SOX act also allows employees at publicly traded companies to report retaliation for FCPA violation disclosures to OSHA within 180 days of the alleged violation. If OSHA finds evidence of retaliation, it will order back-pay and other remedies. If OSHA does not find evidence of retaliation, whistleblowers can still file a whistleblower case in federal court.
• False Claims Act: The False Claims Act (FCA) makes it illegal for an employer to discriminate against or fire an employee for raising allegations of fraud, for engaging in protected activities designed to further an FCA lawsuit or for “other efforts to stop one or more violations.” Whistleblowers may include a retaliation claim as part of their FCA lawsuit, or as a standalone case. Whistleblowers may pursue a retaliation claim regardless of the outcome of an FCA award claim. The FCA provides for double back-pay, reinstatement, special damages, attorneys fees, and costs. The statute of limitations for these retaliation claims is three years.
• Anti-Money Laundering Whistleblower Law: The AML Act protects whistleblowers who report money laundering violations from retaliation. Whistleblowers must file a retaliation claim with the Department of Labor within 90 days of learning of the adverse action. If OSHA finds retaliation, they will order reinstatement, double back-pay, restorative benefits, and other potential relief. However, the AML Whistleblower Improvement Act of 2022 excludes anti-retaliation protections for employees working in credit unions or FDIC-insured financial institutions.
• IRS Whistleblower Program: The IRS Whistleblower Program contains anti-retaliation provisions in the Taxpayer First Act, which allows a whistleblower to sue for reinstatement, double back-pay, attorney’s fees, and other compensatory damages such as emotional stress.
• Consumer Product Safety Act of 2008: This Act protects employees who blow the whistle on covered consumer safety hazards and violations. Claims must be filed with OSHA within 180 days of the adverse actions and can be removed to federal court for jury trial.
• Criminal Antitrust Anti-Retaliation Act: Whistleblowers must file a claim with the Department of Labor within 180 days of the adverse action.
• Food Safety Modernization Act of 2010: This Act offers protection from retaliation to all employees in the food safety industry. It extends to employees “engaged in the manufacture, processing, packing, transportation, distribution, reception, holding or importation of food.”

Healthcare Whistleblowers

• Patient Protection and Affordable Care Act: This Act protects whistleblowers who disclose violations of Title I of the Patient Protection and Affordable Care Act or Sections 2706 of the Public Health Service Act.

Environmental and Wildlife Whistleblowers

• Environmental Whistleblower Protections: The Clean Air Act, the Solid Waste Disposal Act, the Superfund, the Water Pollution Act, the Toxic Substances Act, and the Safe Drinking Water Act all provide broad coverage for environmental whistleblowers, including remedies for retaliation such as back-pay, compensatory damages, and reinstatement. The Safe Drinking Water and Toxic Substances Acts also permit exemplary damages. However, all complaints must be filed with the Department of Labor within a short 30-day period.
• Surface Mining Act: This act provides similar protections as other environmental protections; however, whistleblowers must file claims with the Department of Interior.

Federal Contractor Whistleblowers

• Department of Defense (DOD) Contractor Fraud: Whistleblowers reporting misuse of DOD funds by a contractor may file with the DOD, or NASA, or the Inspector General. Compensatory damages are available. This statute is nearly identical to the Enhancement of Whistleblower Protection for Contractor and Grantee Employees Act.
• Federal Acquisition Regulations; Contractor Business Ethics Compliance and Contractor Whistleblower Protection Rules: These regulations mandate that federal contractors not retaliate against whistleblowers and establish ethics/compliance programs. Employees who suffer retaliation by a federal contractor may file a complaint with the Inspector General from the agency that awarded the claim.
• False Claims Act: Employees working under federal contracts can file a qui tam lawsuit using the False Claims Act and receive whistleblower protections.
• Enhancement of Whistleblower Protection for Contractor and Grantee Employees: Whistleblowers must file initial complaints with the agency’s Office of the Inspector General that issues the grant or contract within three years of adverse, retaliatory action. However, employees working on projects related to the U.S. Intelligence community are exempt from this law.

Public Employee Whistleblowers – State, Local, or Federal

• Civil Service Reform Act, Whistleblower Protection Act: This is the major law that protects most federal employee whistleblowers. Under this Act, federal employees can file retaliation complaints with the Office of Special Counsel (OSC) and appeal with the Merit Systems Protection Board.
• Inspector General Act: This Act permits the Inspector General to receive allegations of misconduct and investigate retaliation.
• Congressional Accountability Act: This Act protects congressional offices under traditional employment discrimination laws, such as Title VII and OSHA. The law establishes a special office and procedures for these employees.
• Privacy Act: Prevents federal government from leaking confidential information; permits persons to obtain copies of their government records and request a correction of records to ensure they are accurate. Damages available from the U.S. government for willful violations of the act. However, these damages are limited to actual economic harm caused by the leaks.

Military and Department of Defense Agency Whistleblower Protections

• Coast Guard Whistleblower Protection: This law implements statutory protections to members of the armed services and Coast Guard.
• Armed Forces/Prohibition Against Retaliation: The Uniform Code of Military Justice (UCMJ) Article 132 prevents retaliation against service members. Members of the armed service can contact members of Congress, the Office of Inspector General, DOD auditors, and other military officials designated to receive complaints.

National Security Whistleblower Protections

• CIA Employee Disclosures to Inspector General: This provision allows the CIA Inspector General to accept complaints and investigate retaliation against employees of the agency.
• Homeland Security Act of 2002: this act provides protection for Homeland Security employees pursuant to the Civil Service Reform Act.
• Department of Defense Intelligence Agencies: DOD Inspector General is authorized to accept complaints from DOD intelligence-related components, including those excluded from coverage under the Civil Service Reform Act.
• Title VII Whistleblower Protection for Intelligence Community; Employees Reporting Urgent Concerns to Congress: Provides procedures for national security/intelligence agency employees to obtain protection when contacting Congress concerning classified matters.
• Federal Bureau of Investigation Whistleblower Protection Act: Permits FBI employees to file retaliation claims with the Department of Justice Office of Inspector General.
• Inspector General of the Intelligence Community Whistleblower Protection Act: Prohibits reprisals against intelligence community employees who disclose waste, fraud, or abuse to the intelligence community Inspector General. The Act also provides a procedure for intelligence community employees to report serious abuses to Congress.
• Presidential Policy Directive: This directive requires that intelligence agencies, including the Central Intelligence Agency, the National Security Agency, and the Defense Intelligence Agency, establish procedures to protect employees who make disclosures covered under the directive. Whistleblower rights under this directive cannot be enforced in court, and the ultimate decision-making authority under the directive is vested with the head of the agency for which the employee works.

Nuclear Safety Whistleblower Protections

• Atomic Energy Act/Energy Reorganization Act: This act provides broad protection for employees who disclose safety and regulatory violations at civilian nuclear facilities and nuclear weapons facilities. Complaints must be filed with the Department of Labor within 180 days.
• Nuclear Regulatory Commission Rules: 10 C.F.R § 50.7 includes rules that prohibit retaliation against employees who raise concerns.
• Department of Energy, Defense Activities, Whistleblower Protection Program: This law is relatively weak, and the Atomic Energy Act should be used instead, if possible.

Occupational Health and Safety

• Asbestos School Hazard Detection and Control, Employee Protection Provision: Whistleblowers mush file claims with the Department of Labor within 90 days of an adverse action. The DOL reviews and litigates under the Occupational Safety and Health Administration law.
• Mine Health and Safety Act, Nonretaliation Act: Retaliation complains must be filed with the U.S. Department of Labor’s Mine Safety Act and Health Administration within 60 days of an adverse action. Employees are entitled to preliminary reinstatement if an initial review determines that the complaint was not “frivolously brought.” Damages include reinstatement, back pay, and attorney fees.
• Occupational Safety and Health Act (OSHA), Nonretaliation Provision: Claims must be filed with the Department of Labor within 30 days of an adverse action. There is no private right of action under the federal law. It is up to the DOL to file a suit against the employer on the employee’s behalf. If the DOL does not litigate the case on behalf of the employee, the case is closed. Because of the weaknesses in this federal law, many employees have utilized state laws that prohibit retaliation against employees who blow the whistle on unsafe or unhealthy working conditions.

Transportation Whistleblower Protection

• Airline Safety: Under this law, there is a 90-Day statute of limitations. The procedures are similar to those found under the Energy Reorganization and SOX Acts.
• Automobile Safety: Employees working for automobile manufacturers, part suppliers, and dealerships are protected if they raise safety concerns with their employers or with the Department of Transportation. Complaints must be filed with the Department of Labor within 180 days of an adverse action. Procedures are consistent with the Food Safety Act and the Consumer Protect Safety Act.
• Motor Vehicle Safety Whistleblower Act: Authorizes the Secretary of Transportation to pay rewards to employees who disclosure safety violations in accordance with the producers set forth in the Act and regulations issued by the Department of Transportation.
• Public Transportation (National Transit Systems Security Act): Provides protections for public transportation workers that are substantially identical to those contained in the Surface Transportation Act.
• Truck Safety: Protection for employees who file complaints concerning commercial motor safety or who refuse to operate the vehicle due to safety or security concerns. An employee can file a claim in federal court and request a trial by jury.
• Railroad Safety Act: Protections for railroad workers are substantially identical to those contained in the Surace Transportation Act
• Safe Containers for International Cargo Act, Employee Protection Provision: Complaints must be filed with the Department of Labor within 60 days of adverse action. DOL must file a claim in court on behalf of the employee. There are no reported cases of the DOL ever seeking to protect an employee under this law.
• Seaman Whistleblower Protection: Department of Labor and Federal Court jurisdiction over complaints filed by seamen alleging retaliation for raising concerns with the Coast Guard. Back pay, attorneys’ fees, and compensatory and punitive damages are available.

Get Legal Assistance

Are you a whistleblower needing legal representation to file a retaliation claim? Contact the National Whistleblower Center and the National Whistleblower Legal Defense and Education Fund’s Attorney Referral Service. Fill out a free and fully confidential intake form to connect with an attorney experienced in whistleblower retaliation cases. Learn more.