Work Harassment

Workplace harassment is often associated strongly with sexual harassment. However, employees can be harassed a variety of way at work. It’s important to understand harassment in the workplace because it can affect you and your coworkers in different ways. If you are a manager or supervisor, you will also want to understand how to recognize if a harassment situation might be going on and how to react if an employee brings a concern to you.

The following includes information on what harassment is, how to file a harassment complaint, and what to do if you lose your job due to a harassment related situation.

Definition of Workplace Harassment

There are multiple kinds of harassment that can take place at work. Harassment can be verbal or physical, and it can be based on a variety of reasons, including gender, religion, ethnicity and race.

The Equal Employment Opportunity Commission (EEOC) defines harassment as the following:

Unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

The definition of harassment can also vary from state to state, however it can never be more relaxed than the EEOC definition. For example, New York State expanded the definition of covered employers for harassment related incidents to any employer with more than four employees. Additionally, the expanded the harassment coverage for sexual orientation and gender identity, as well as all individuals over the age of 18.

Workplace harassment is considered illegal when an employee suffers unwanted conduct based on a protected trait, such as gender or race, and the employee either had to endure the conduct to keep their job or the employee worked in a hostile work environment because the treatment was severe and pervasive.

Although one severe incident can be enough to create a claim of illegal workplace harassment, typically there is a repetitive nature to the harassing behavior.

Harassment becomes unlawful when

Sometime the line of what is illegal harassment is obvious and sometimes it’s a little blurred. Generally harassment is illegal when the individual must endure the offensive conduct as a prerequisite to continued employment. Also, if the conduct is so severe and pervasive that a reasonable person would consider it intimidating, abusive, or hostile. Another indicator the behaviors may be illegal is if the employee suffered a decrease or negative effect in pay or status based on the supervisor’s harassment.

Harassing conduct can come in many different forms, including offensive pictures, jokes, name calling, insults, slurs, physical threats and assaults, and intimidation.

Important terms in Understanding Harassment

Protected Characteristic

Harassment is considered illegal if it’s based on the victim’s gender, race, age, or any other protected characteristic, as defined by federal law such as Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act and by certain state and local laws.

Offensive Conduct

Harassment that is offensive according to a reasonable person, can be through derogatory jokes, name-calling, slurs, threats, or physical violence based on any protected characteristic.

Unwelcome Conduct

Conduct or statements that are unwelcome to the victim are considered illegal harassment.

Severe or Pervasive

If unwelcome conduct happens over a series of incidents or there is a pattern over time, the harassment could be considered illegal. Typically one incident doesn’t constitute harassment, unless the one incident is extreme or pervasive.

 

Additional types of workplace harassment

There are a variety of other types of workplace harassment above and beyond the standard EEOC definition. Some states prohibit discrimination based on whether or not the employee is a smoker. Some states, including New York and Wisconsin, have laws that prohibit discrimination based on a person’s arrest and conviction records.

Several other states prohibit discrimination due to a person’s receipt of public assistance. The District of Columbia has broaden their definition to prohibit discrimination on the basis of marital status, family responsibilities, personal appearance, or political affiliation.

Recently a court in Florida made a groundbreaking decision when it determined that an obese person’s complaints of harassment for “fat jokes” made about her were a violation of the American Disability Act. Comments made about a diabetic’s medical condition were ruled as harassment in a New Jersey court.

Components of Workplace Harassment

Workplace harassment can both be non-sexual or sexual. Workplace harassment can be between members of the opposite or same sex.

The harassment doesn’t have to be between a leader and his or her subordinate. The harasser could be your supervisor, a supervisor of another area, a co-worker, or a non-employee you have contact with at work.

The victim of harassment, doesn’t have to be the subject of the harassment – it could be anyone who is negatively affected by the harassing behavior.

Harassment at Job Interviews

Harassment or discrimination could also take place in a job interview. Employers should not ask any questions related to gender, race, religion, age, marital status, disabilities, ethnic background, country of origin, or sexual preferences.

These questions are not directly relevant to your abilities or qualifications to the job, and are not appropriate to be asked during an interview, therefore they should be avoided so there aren’t any questions of discrimination.

Examples of Workplace Harassment

One of the most common types of workplace harassment is verbal harassment. Verbal harassment can include name calling, insults, innuendos, or jokes. The next step would be physical harassment, which is usually more severe. Physical harassment includes anything like hitting, pushing, unwanted touching, and groping. Physical harassment can be part of any kind of harassment, but is usually associated with sexual harassment.

Sexual harassment in the workplace involves any unwanted behaviors regarding sex, sexual orientation, or gender. It typically involves unwanted behaviors, conduct, or comments (verbal or written). Obscene emails, jokes, discussions amongst coworkers, and even staring in a suggestive manner can be deemed offensive by the victim.

Other unwanted actions that are related to gender, race, religion, or ethnicity, for example, can also be considered harassment if they interfere with an employee's success at work or create a hostile work environment for the employee.

Terms and Conditions of Employment

The terms and conditions of employment can be affected in several ways due to a harassment situation. If the harasser is in a position of authority over the victim, the harassment might include threats of negative job actions such as termination of employment, demotion, or failure to get promotions. Job assignments or hours could be changed to negatively affect or punish the victim.

Options for Dealing with Workplace Harassment

Workplace harassment and discrimination issues are enforced by the Equal Employment Opportunity Commission (EEOC). If you believe your employment rights have been violated, you have the option to file a discrimination or harassment charge with the EEOC.

However, the EEOC will likely ask you what you have done to inform your employer or to try to stop the harassment or discrimination prior to filing a charge. You will want to show that you have tried to stop the harassment or discriminatory behavior. You’ll need to take steps to ensure the harasser knows the behavior is not wanted, and to give your employer the opportunity to intervene and stop the unwanted behavior.

As a victim, you should try to solve the issue internally by reaching out to the harasser and let them know the behaviors or unacceptable language is not wanted. Request that those behaviors stop immediately. This may not seem like a pleasant task, however it’s important to ensure the harasser understands that what they are doing is wrong and unwanted behavior. The best way to prove the behavior was unwelcome, is to show that you informed the harasser that the behavior was inappropriate.

In some cases, it may not be appropriate or it would uncomfortable for you to confront the offender directly. Therefore, you will want to contact your supervisor to discuss the issues. If the offender is your supervisor, you can go directly to Human Resources or to your bosses’ boss to file a complaint.

If this situation doesn’t improve, you will want to put your complaint in writing to prove you formally complained and informed about the harassing behavior.

If you spoke to the harasser directly and the behavior didn’t stop, you’ll want to take your complaint to the next level – your Human Resources Department or you manager. You can always check your employee handbook or any company policies on harassment to understand the proper channels for filing your complaints. This will give the company an opportunity to look into the complaint and move toward resolving.

Suing for Harassment or Discrimination

Remember that giving the employer an opportunity to resolve the issue internally is an important step because in some cases, the employer will be the one held liable if the issues escalate or aren’t resolved.

If you lose your job or have damage to your position or pay as a result of the harassment or filing a complaint of harassment, the company would be held liable.

Remember to always keep written records of the time and date of any of the incidents and discussion you have. Make note of any witnesses or conversations others have with you regarding the harassing behavior. These written records will not only help your company investigate the incidents, but will be necessary if you proceed with filing a claim with the EEOC.

You can file a claim with the EEOC anytime up to 180 days after the harassment incident occurs. To file a claim you can call the EEOC, file a claim in person, or file through the mail. The EEOC will collect basic data from you like your name, address, phone number and information about your employer. They will also want detailed information on the harassment or discriminatory behavior you have dealt with.

Once the EEOC receives your claim, they will begin to investigate. Their investigation may including contact the harasser, any witnesses you have provided, your co-workers, and speaking with your employer (typically the Human Resources Department). The EEOC may request documents and may visit your workplace to conduct parts of the investigation.

Once you’ve brought the issue to your employer’s attention, it is illegal for them to punish you or retaliate against you for bringing a claim forward. Retaliation comes in many forms but can include terminating your employment, demoting you, reducing your pay or your work hours, or any other negative response forward.

At any point in this process, you have the option to contact an attorney to help you understand the process and make sure your rights are protected. If there is a delay in your claim and the EEOC isn’t able to resolve your issues within six months, the EEOC will issue a “right to sue” judgement and you will have up to three months to file a lawsuit. If you haven’t already, you would want to contact an attorney at this time.

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