Workplace harassment is a serious issue and a form of illegal employment discrimination. It creates a hostile or offensive work environment and undermines the principles of equality and respect. Understanding what constitutes harassment and how to address it is crucial for both employers and employees.
Several federal laws prohibit workplace harassment, ensuring a safe and equitable environment for all:
- Title VII of the Civil Rights Act of 1964: This landmark legislation prohibits discrimination and harassment based on race, color, religion, sex (including sexual orientation, gender identity, and pregnancy), and national origin.
- The Age Discrimination in Employment Act of 1967 (ADEA): This act protects individuals aged 40 and older from age-based discrimination and harassment.
- The Americans with Disabilities Act of 1990 (ADA): This law prohibits discrimination and harassment against individuals with disabilities.
Harassment becomes illegal when:
- It creates a condition of employment: This means enduring offensive conduct is required to maintain your job.
- It creates a hostile work environment: This occurs when the conduct is severe or pervasive enough to interfere with an employee’s ability to perform their job and creates an intimidating, hostile, or offensive work atmosphere.
Harassment can be based on various protected characteristics, including:
- Race
- Color
- Religion
- Sex (including sexual orientation, gender identity, and pregnancy)
- National origin
- Age (40+)
- Disability
- Genetic information
Forms of Harassment
While minor annoyances and petty slights are generally not considered illegal harassment, it is crucial to understand the difference. If an incident is extremely serious or contributes to a hostile work environment, it can be considered illegal. A “reasonable person” standard is often used to determine if the environment is intimidating, hostile, or offensive. Offensive behavior includes, but is not limited to: offensive jokes, slurs, threats, intimidation, ridicule, insults, offensive images, and interfering with work. Harassment can manifest from various sources, including supervisors, coworkers, or individuals from outside of the company. The victim of harassment does not necessarily need to be the person directly harassed; the victim can be anyone impacted by the offensive behavior. Illegal harassment can occur even if the victim does not lose money or their job.
Verbal harassment: Verbal harassment happens when someone’s language or actions create an environment where another employee struggles to perform their job.
Examples:
- Directing offensive joke at someone’s protected characteristics, such as race, gender, religion, disability, or age.
- Speaking to or about a coworker with language that insults or diminishes them.
- Directing insults towards someone’s intelligence, abilities, or personal traits.
- The issuance of threats concerning a person’s job security, physical safety, or property.
- Making sexually explicit comments, discussing a person’s sexual activities, or making inappropriate sexual advances.
Physical harassment: Physical harassment is abusive behavior that happens when someone touches you in an unwelcome way, and when this unwanted contact occurs, it is aggressive or threatening.
Examples:
- Striking another person (hitting, punching, slapping)
- Physical assault (shoving, grabbing, pushing)
- Unwanted physical contact (groping, fondling)
- Intimidating physical behavior (threatening gestures, standing too close)
- Forcible restraint (holding someone against their will)
Nonverbal Harassment: Actions and displays that create a hostile work environment, without using words, are non-verbal harassment. Non-verbal harassment can occur in various ways, including:
Examples:
- Physical: inappropriate touching, invasion of space, unwanted proximity
- Visual: Suggestive looks, offensive displays
- Behavioral: Offensive gestures, stalking, exclusion, sabotage
- Any other non-verbal behavior that creates an intimidating environment.
Hostile Work Environment
To qualify as a hostile work environment, you must experience unwelcome behavior, interference with your work, and regular occurrence of the harassment even after reporting. To assess a hostile work environment, consider the type, frequency, duration, and context of the unwanted behavior.
Key indicators of a potentially hostile work environment:
- Increased staff turnover
- Elevated levels of stress
- A climate at work that is always hostile or negative
- Feeling consistently excluded from vital communications and/or meetings
- Subjected to unattainable goals or deadlines
- Consistently negative and non-beneficial feedback
A hostile work environment is not always characterized by blatant acts of aggression. It can develop subtly, through a pattern of behaviors that create a sense of unease, fear, or discrimination. To accurately assess whether a workplace has become hostile, it is crucial to look beyond isolated incidents and consider the overall atmosphere.
Examples:
- Unwelcome behavior
- Interference with work performance
- Regular occurrence of harassment, even after reporting
- Increased staff turnover.
- Elevated levels of stress.
- A climate at work that is always hostile or negative.
- Feeling consistently excluded from vital communications and/or meetings.
- Subjected to unattainable goals or deadlines.
- Consistently negative and non-beneficial feedback.
To assess a hostile work environment, consider:
- The type of harassment
- The frequency of the harassment
- The duration of the harassment
- The context of the harassment
Employer Responsibilities: Preventing and Addressing Harassment
Effective ways to eliminate workplace harassment include the establishment of a robust complaint or grievance procedure, the provision of comprehensive anti-harassment training to managers and employees, and the implementation of immediate and appropriate remedial action when complaints from employees are received. Further, employers are encouraged to cultivate a workplace environment that is conducive to open communication, where employees feel secure in raising concerns and can be confident in their resolution.
Employees should communicate directly to the harasser that the conduct is unwelcome. Employees should immediately report harassment to management and document all instances of harassment.
Employers have a legal duty to prevent and address workplace harassment. This includes:
- Implementing a clear and comprehensive anti-harassment policy
- Providing regular anti-harassment training to employees and managers
- Establishing a robust complaint procedure
- Taking immediate and appropriate action when complaints are received
- Cultivating a workplace environment that is conducive to open communication.
- Employers must explicitly communicate a policy of zero tolerance for unwelcome harassing conduct.
Employer Liability
Employers are automatically liable for harassment by supervisors that results in negative employment actions (e.g., termination, demotion). Employers may be liable for hostile work environments created by supervisors, unless they can prove they took reasonable steps to prevent and correct the behavior and the employee failed to utilize available resources. An employer becomes liable for harassment perpetrated by non-supervisory employees or non-employees under its control, such as independent contractors or customers on the premises if the employer had knowledge or should have been aware of the harassment and neglected to act quickly to stop the harassment.
Creating a Respectful Workplace
Preventing workplace harassment requires a commitment to creating a culture of respect, inclusivity, and open communication. By understanding the legal framework, recognizing the signs of harassment, and taking proactive steps to address it, employers and employees can work together to create a safe and equitable workplace for all.
Retaliation: Protecting Those Who Speak Up
Anti-discrimination laws protect employees from retaliation, which includes protection from harassment. It is illegal to harass someone for reporting discrimination or to harass someone for opposing discriminatory practices. Employees are also protected against retaliation for filing discrimination charges, providing testimony, and participating in investigations or legal proceedings. This means employers cannot punish employees for:
- Reporting harassment or discrimination
- Opposing discriminatory practices
- Filing discrimination charges
- Providing testimony in investigations or legal proceedings
EEOC Review
The Equal Employment Opportunity Commission (EEOC) conducts a comprehensive review of the entire records, encompassing both the nature of the conduct and the contextual circumstances of the alleged incidents. Each case is evaluated individually to determine if the harassment is severe or pervasive enough to be illegal.
