However, employees need to also be aware that not every type of threatening or offensive behavior on the part of an employer qualifies as harassment under legal definitions. Knowing exactly what behaviors are in violation of employment discrimination laws can help employees determine whether they have a harassment case they should pursue.
Behavior Constituting Illegal Harassment in the Workplace
The type of behavior constituting illegal harassment in the workplace may not be what most employees think. Courts have tried over the years to make it clear what harassment is and what it is not. Primarily, the role of the courts on this particular issue has been to stress that laws concerning harassment are not meant to police the workplace. The main idea is that the law is not a “general civility code” for the workplace as described in the notable Oncale v. Sundowner Offshore Services, 83. F. 3d 118 (1998).
According to the Equal Employment Opportunity Commission (EEOC), the type of behavior constituting illegal harassment in the workplace must be serious. It should create the kind of work environment that a reasonable person would consider hostile, intimidating or offensive. This is an objective measurement of the offending behavior rather than a subjective perception based on individual opinions.
Courts have also ruled further that the behavior must be enough to alter the conditions of employment for the offended party. This means that either the harassing conduct has led to some type of tangible adverse action, such as termination, demotion or even pressuring an employee to quit, or it is sufficiently severe and pervasive. Again, courts analyze the severity and pervasiveness of harassing conduct from the perspective of a reasonable person, using an objective standard.
Thus, petty insults and off-hand remarks do not constitute the type of behavior that is illegal under the law. Isolated incidents are also not likely to rise to the level of illegality precedented in the courts, unless those incidents are sufficiently severe and pervasive. Employees should keep this in mind as they decide whether the environment they’re working in is actually hostile enough to warrant allegations of illegal harassment.
Employment Discrimination Law Violated by Illegal Harassment
Title VII of the Civil Rights Act Title VII contains provision prohibiting harassment that is rooted in discriminatory acts such as repeatedly referring to employees using racial epithets or leaving obscene messages and comments in the work environment. These type of actions could be discriminatory on the basis of one or more of the protected categories noted in Title VII: race, color, national origin, age, sex, religion and disability.
Title VII harassment also includes harassment that is the result of retaliation towards an employee who has complained about discrimination, filed a charge with the EEOC or who has participated in discrimination proceedings in court.
Title VII also addresses sexual harassment – harassment based on a person’s male or female status. This type of harassment can take on a number of forms. For instance, quid pro quo sexual harassment involves an employee who is propositioned for sex and sexual favors as a condition of his or her job or as a condition of a raise or promotion.
Another form of sexual harassment prohibited under Title VII is hostile work environment sexual harassment. This refers to instances where employers allow a pattern of exposure to unwanted sexual behavior. This could be an employer who allows lewd sexually offensive remarks to continue without reprimand within earshot of others or who exposes employees to unwanted and unwelcome attention, such as asking for dates.
Age Discrimination in Employment Act (ADEA) The ADEA also prohibits harassment, this time based on a worker’s status as over 40 years of age. Overt harassment based on age, such as excessive name calling and offensive remarks, is prohibited as well as more subtle forms of harassment, such as creating a work environment that pressures an employee to retire or resign due to his or her age. Like Title VII, The ADEA also prohibits harassment that comes in the form of retaliation related to discrimination complaints, charges or lawsuits.
American With Disabilities Act The Americans with Disabilities Act (ADA) addresses harassment of workers with disabilities. An employer is prohibited from harassing disabled workers and from allowing a hostile work environment targeting disabled workers. Again, similar to Title VII and the ADEA, retaliatory harassment based on a worker’s status as disabled is also prohibited under the ADA.
When is an Employer Liable for Harassment?
The question often arises, when is an employer liable for harassment? The basic issue here is whether the harassing behavior of a supervisor, manager, co-worker or even a client makes the entire company liable. It’s a question that must be answered in order to determine who should be sued or who should be named in an EEOC charge or employment discrimination lawsuit.
In certain situations, an employer is automatically liable for harassment. This occurs when harassment by a supervisor ends in an employee’s termination, loss of wages or when harassment by a supervisor results in a failure to promote or hire an employee.
For hostile work environment cases, where an employee alleges that a supervisor has allowed known harassment to continue unchecked, an employer can be liable unless it is able to show two conditions have been met. First, it must prove that it tried to prevent and correct the offensive behavior. Second, it must show that the offended employee failed to take advantage of the help.
Harassment by non-supervisory employees, such as co-workers could also make an employer liable for harassment. This includes harassment by customers and clients. However, liability for non-supervisory employees, customers and clients requires that an employee prove that the employer had sufficient control over the individual.
For instance, courts have held an employer liable for the harassing actions of customers when the customers were harassing employees on company premises on a routine basis and the company knew or should have known of the harassment, but failed to take steps to correct it.
Harassing Behavior Analyzed on Case-by-Case Basis
Courts and investigators tend to analyze behavior on a case-by-case basis in order to determine whether the alleged harassment constitutes a violation of law. This means they inspect the entire record of a case, taking in the facts as a whole, before deciding an employer is liable.
With that in mind, employees should be sure to notify the appropriate persons within the company to report harassment to ensure that all proper procedures are followed, and be sure to retain a capable employment discrimination attorney as early on in the process as possible.