Workplace harassment is unwanted verbal or physical contact that discriminates based on race, color, sex, religion, national origin, age, or that is conducted in retaliation. An employer crosses the line into unlawful territory when its actions become 1) sufficiently severe or pervasive to create a hostile work environment or 2) a supervisor’s harassing conduct results in a change in the employee’s status or benefits.
Federal law protects anyone who is a victim of workplace harassment. This includes, managers, supervisors, co-workers and even those who are indirectly affected by the harassment.
1. The law that governs workplace harassment is Title VII of the Civil Rights Act of 1964.
As with most employment discrimination issues, workplace harassment is covered under the federal statute known as Title VII. The Equal Employment Opportunity Commission (EEOC) has issued Guidelines to expand on the prohibition of discrimination based on race, age, sex, national origin, color and religion.
2. Limited time is available for filing a charge with the Equal Employment Office.
One of the first steps to take in remedying workplace harassment is to file a charge with the EEOC. Those who experience workplace harassment have only a limited window of time for filing a claim with the EEOC, however.
Workplace harassment claims must be filed no later than 180 days from the last incident of harassment. After receipt of the filing, the EEOC will investigate the claim and may issue a “notice of right to sue”, in which case a worker must file a court complaint within 90 days of the right to sue notice.
3. Civility is not required under Title VII.
The Supreme Court has explained that Title VII is not a “general civility code” for the workplace. In other words, the law does not regulate the social climate at the office. It does not target all verbal or physical harassment. Some kinds of harassment may not be actionable under the law and can be addressed with supervisory discipline rather than court intervention.
To determine the sufficiency of workplace harassment, courts will look at its severity, its frequency and whether it was physically threatening or otherwise pervasively disturbing. They may also analyze whether the conduct interfered with work performance or had detrimental psychological effects. Mere offensiveness, off-hand remarks or sporadic instances of workplace misconduct is often not enough to prove Title VII harassment.
4. “Quid pro quo” harassment means harassment of a sexual nature.
The Equal Employment Opportunity Commission specified Guidelines in 1980 that defined sexual harassment as “sexual advances, requests for sexual favors and verbal and physical conduct of a sexual nature.” These Guidelines set the pace for actionable claims of sexual harassment, and by 2011, sexual harassment claims made up about 12% of all EEOC claims.
The EEOC Guidelines also drew an important distinction between two forms of workplace harassment: “quid pro quo” and “hostile environment” harassment. Quid pro quo harassment occurs when a worker is required to provide sexual favors in exchange for employment or conditions of employment. This type of sexual blackmail is prohibited under Title VII and is often coupled with claims of retaliatory discharge, when employees speak out about harassment and are subsequently fired for doing so.
5. Unlawful sexual harassment is not limited to opposite sexes.
In recent years the number of sexual harassment claims brought by men has doubled. In 2008, 57% of men who reported harassment claimed the conduct came from a woman and 41% claimed it came from a man. The Supreme Court, in an important case called Oncale v. Sundowner, has held that Title VII does not rule out claims of male-on-male sexual harassment, stating that the statute covers “any kind of sexual harassment that meets its requirements.”
6. The US Department of Labor provides guidance on vicarious employer liability for workplace harassment.
In order for a workplace harassment claim to be successful, it matters who allegedly conducted the harassment. The EEOC has announced that an employer can only be held liable for workplace harassment when a supervisor engages in harassing conduct or creates a hostile work environment.
Therefore, it is important to distinguish whether the person accused of harassment is a supervisor in terms of the law. According to the EEOC, a supervisor is any worker who has authority to undertake or recommend employment action or authority to direct employee daily work activities. Even if a person is not a supervisor officially, but a worker believes them to be, unlawful harassment may occur.
What if the harassment comes from a coworker? If an employer knew or should have known of the harassment and did nothing to prevent it, it may be liable for creating a hostile work environment. However, if the employer takes reasonable steps to remedy the harassing conduct, doing so is considered a suitable defense against workplace harassment claims.
7. The number of workplace harassment claims filed with the EEOC has decreased over the past decade.
According to EEOC statistics, the number of workplace harassment claims is gradually shrinking. Ten years ago there were nearly 13,600 cases of sexual harassment received, compared to 11,364 received in 2011. While this may be related to the growing number of businesses offering workplace harassment training and implementing new policy, other factors may be at play.
Only a small percentage of those who experience workplace harassment actually make formal reports or file claims with the EEOC. This is often because doing so could lead to retaliatory action from an employer or place a career in jeopardy. Though sexual harassment claims brought by men are on the rise, men have an even harder time reporting workplace harassment, in many cases due to prevailing masculine stereotypes.
Continual Cause for Concern
Even with EEOC numbers declining, workplace harassment continues to be a cause for concern. It is important that employees know their rights and understand the guidelines and principles underlying laws that protect them. Getting legal advice from a lawyer experienced in workplace harassment cases can be crucial for handling complex situations at work. If you think you’ve been a victim of workplace harassment, contact Shegerian & Associates today.