Harassment in the Workplace​

Workplace harassment is a term for unwanted verbal or physical harassment based on race, ethnicity, religion, sex, gender identity, age, or disability. Considered a type of discrimination, it's outlined in-depth in Title VII of the Civil Rights Act of 1964 and defined by the Equal Employment Opportunity Commission. As such, any type of harassment in the workplace is a violation of federal law and most state laws. Knowing the ins and outs of workplace harassment is important because it can affect all workers and because knowledge is the first step toward prevention.

Although it's the most discussed, sexual harassment isn't the only form of harassment in the workplace. There are many types of harassment, and any type of conduct including verbal, written, or physical actions becomes harassment when it's mandatory for job retention, changes in salary, or denial of promotion. New York State's Human Rights Law goes even further than federal law, giving harassment protection based on military record, prison record, marital status, and victims of domestic abuse.

Sexual Harassment v. Non-Sexual Harassment

Sexual harassment is just one type of harassment and discrimination in the workplace. It includes any unwelcomed conduct, behavior, or comments regarding sexual orientation, sex, or gender. This includes not only touching or suggestive comments but also the posting of offensive images and videos or lewd email messages or even suggestive looks. Sexual harassment can take place between any co-workers, whether same-sex or opposite sex.

Non-sexual harassment is similar to sexual harassment in that it's defined as unwanted conduct in the workplace that interferes with an employee's work or creates a hostile work environment. Offensive language and actions regarding race, religion, age, or ethnicity are all deemed non-sexual harassment in the workplace. This can also include other personal situations, such as intelligence, disability, or physical stature.

Types of Non-Sexual Harassment in the Workplace

Non-sexual harassment in the workplace comes in many forms and from many aggressors. Each person can be guilty of more than one of these types of harassment, but the most common include:

  • Verbal Harassment
  • Physical Harassment
  • Supervisory Harassment
  • Co-worker Harassment

Verbal Harassment

Verbal harassment is widely regarded as the most common type of workplace harassment. This includes jokes, insults, innuendos, slurs, or any other derogatory remark directed toward an employee or co-worker.

Physical Harassment

Although less common than verbal harassment, physical harassment is often more severe and can have a deeper impact on victims. It's any type of behavior that intimidates or bullies' others, such as hitting, pushing, touching, groping, or purposely rubbing against someone. Most often, physical harassment is associated with sexual harassment.

Supervisory Harassment

Because of their position of authority and the dynamics of power in the workplace, supervisors are one of the more intimidating purveyors of workplace harassment. With the ability to change wages, shifts, and job titles/promotions, supervisor harassment can leave an employee feeling vulnerable, helpless, and trapped. Supervisory harassment includes all types of sexual and non-sexual harassment.

Co-worker Harassment

Although co-workers can't leverage their position to gain a position of power or authority over another employee, they can still create a similarly offensive work atmosphere through the same types of verbal or written actions.

What Constitutes Offensive Workplace Conduct?

The key to determining what constitutes offensive workplace behavior is whether the particular action was unwelcomed, unwarranted, or unwanted. This can span from little comments all the way to forceful violence. Essentially, there are two types of harassment in the workplace.

  • Quid Pro Quo
  • Hostile Work Environment

Quid Pro Quo

Quid pro quo harassment cases are generally jumbled in with sexual harassment cases. However, it can branch out into other forms of harassment. In these cases, the harasser, typically a supervisor, insists that the victim do something to benefit them in order to receive a promotion, raise, or other benefit.

Hostile Work Environment

Hostile work environment harassment is the other main type of harassment, but it varies greatly from the quid quo pro type. This type of harassment only contributes to a hostile work environment, yet it may not result in disciplinary action for the offender or a loss of employment opportunity for the victim. In these cases, the victim fails to work up to their full potential because of sexual advancements, off-color comments, ridicule, teasing, and other. This may also include favoritism, derogatory mimicking to other employees, and more.

Unwelcome Content

A key aspect of defining harassment in the workplace is figuring out what is unwelcome content. This is important because it determines whether the harassment is illegal. In some instances, there is a lack of evidence of unwelcome conduct that allows a company or alleged offender to dispute the claim. For example, if the harasser can demonstrate that a victim, at some point, told or gave a similarly worded joke or comment, it negates the claim that the original victims made. That is what makes the definition of "unwelcome" important not only for the victim but the offender as well.

No matter what type of harassment they are facing, most employees should consider an attorney, especially if the situation escalates or nothing is done to make the situation cease. With the right lawyer, victims of sexual harassment can protect their rights and take the proper course of action to defend themselves.

In many cases, it's up to the victim to show the workplace's hostility. This means that it's subjectively obvious to the victim that harassment occurred. However, it's also their duty to prove to a jury that a reasonable individual would also consider any action incurred to also be sexual harassment.

Preventing Mistreatment and Maintaining the Right to Sue

Preventing harassment and maintaining the right to sue isn't always as straightforward as it may seem. The first step toward preserving any unwanted behavior while being able to possibly curve any sexual harassment is to confront the offender as soon as possible. As soon as you tell the harasser that you found their comments offensive, unsavory, or unwelcome, it's the first step toward proving harassment and protecting your interests at the same time.

If you feel like you were a victim of harassment in the workplace, the next step after voicing your displeasure is to document everything that happened in your instance of sexual harassment and what you did to try to amend the situation. Hopefully, this is enough to warrant an investigation by your employer or give you enough evidence to make a claim with the EEOC further down the road.

When you tell an offender to stop their behavior, and the offender decides to ignore the complaint or continue the behavior, it's time to consider filing a complaint with the upper management of the company. This usually requires making an internal complaint, which requires the company to make investigations and resolve the problem. While they should also lend a hand to maintaining your legal rights, that may lie on the shoulders of a lawyer instead of your employer.

If you take all the necessary precautions of safeguarding yourself and preventing harassment yet the company does nothing, there's a strong chance that you're entitled to punitive damages or a monetary sum that's levied as a punishment on your employer's behalf.

Real-Life Examples of Workplace Harassment

One example of verbal workplace harassment involved a case settled between the EEOC and an Arizona-based company. An employee with Arab heritage worked for the company and faced many offensive comments during his employments referring to attire and terrorism. This worker then filed a complaint with the company. When the employer failed to rectify the situation or stop it, the employee resigned. It was eventually settled out of court with the company for $50,000.

An example of physical harassment took place when the EEOC filed a claim against Red Lobster on behalf of several female employees at a location. These employees stated that their manager made a hostile work environment by harassing them through groping, grabbing, and pressing against them. Like the previous case, they complained to the company, but nothing happened. Red Lobster eventually paid $160,000 in damages and made alterations to change their harassment policies.

Supervisory harassment (often coupled with sexual harassment) is a problem in many workplaces. For example, a suit brought about by a former employee of UBS Financial Services state that a vice president and manager sexually harassed the woman over several years. The harassments included comments of a sexual nature, statements or remarks about appearance or dress, sexually explicit emails, and even calls placed to the employee's private number. After complaining to management, the company terminated her employment. After filing a suit against the company, the employee won an $8.4 million settlement.

In 2011, the EEOC brought a lawsuit against a North Carolina trucking company that alleged that they had done little to repress a hostile and racially inflammatory workplace. Co-workers of two African-American employees had used racial slurs and other intimidating language to intimidate the employees. Eventually, a jury found that the employees were harassed based on their race. A jury ended up awarding them a $200,000 settlement.

Job Interview Harassment

It's also important to note that workplace harassment isn't just on the job. It can also occur during a job interview. During an interview, an employer may not ask any questions discussing race, religion, gender, age, sexual preference, or any other subject that doesn't deal directly with experience, ability, skills, or qualifications pertaining to the position.

Another issue that may arise during a job interview is handling questions about previous employment. If the answer was in response to workplace harassment, knowing how to approach the subject will enhance the interview process and show tact. Learning how to answer the questions and staying straightforward during responses is vital.

Filing a Complaint with the Equal Employment Opportunity Commission

Once a complainant has exhausted every avenue to try to diminish sexual harassment, tell the offender to stop, or ask management to intervene, it's possible that it's time to file a federal claim with the Equal Employment Opportunity Commission or a state agency that covers sexual harassment. Both of these departments can bring a charge against a company for harassment or discrimination.

After filing a charge with the EEOC or another state agency, if valid, these agencies will notify the employer of the impending charge. However, these agencies may also decline the request, dismiss the charge based on accumulated evidence, or ask that the employer and employee settle or mediate on their own behalf. If these claims don't pass through, the EEOC will eventually file a claim for you and provide you with a right to sue letter.

Receiving the right to sue letter is one of the final steps of being able to file a lawsuit against your employer. Only after you receive the letter may you head to an attorney to file a lawsuit. However, one of the obstacles of filing a lawsuit deals with documentation.

No matter what your current situation, whether in the midst of a lawsuit or at the beginning, you need to have documentation. Every aspect of this documentation should take into account minute details and important information. This should include each time of the harassment, what the harassment entailed, and everything that the victim did to curtail the harassment.

This documentation may also concern which person you talked to in management about the incident and what type of reaction they made as a result. In any instance, you should record the information at the office, as well as a location outside of the office. You should also ask your company to send you a copy of the files to keep for your records.

If you need help with any topic concerning harassment in the workplace, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.