What is Workplace Harassment? (Part One)

This is a question many business owners ask.  They want to make sure they are creating workplaces and culture that is appropriate, productive and protected.  So, we want to take some time and make sure we are all working from the same definitions and common ground.  Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964.

**The Age Discrimination in Employment Act of 1967 (ADEA), The American with Disabilities Act of 1990 (AD), and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA).  

**Harassment is defined by the Equal Employment Opportunity Commission (EEOC) and the Texas Labor Code as unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.  Not, that offensive or unwelcome conduct can take many forms such as offensive jokes, slurs, name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.  

**Harassment can occur in a variety of circumstances and involve multiple parties.  The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a coworker, or even a non-employee such as a contractor or customer.  

**It should also be noted that the victim does not have to be the person harassed, but can be anyone that is affected by the offensive conduct.  

**It is also important to note that unlawful harassment may occur without economic injury to, or discharge of, the victim.

According to the EEOC, between the 2010 and 2015 fiscal years, employers paid upward of $698.7 million during EEOC’s pre-litigation enforcement process to employees alleging harassment.  The EEOC also found that the three most common types of harassment to occur in the workplace were:  1)  Harassment on the basis of sex 2) Harassment on the basis of race and 3) Harassment on the basis of disability.

To be absolutely clear, there is a difference between harassment and discrimination.  While harassment is bias (on the basis of sex, race, religion, etc) that is expressed through interpersonal relations in the workplace, discrimination is that the bias is expressed through official employment actions such as demotions, denial of training opportunities, or job refusal, to name a few.

Now that we have a basic understanding of definitions, examples, and statistics regarding workplace harassment let’s delve into how the law comes into play.  The EEOC defines harassment as unlawful when:

  1.  Enduring offensive conduct becomes a condition of continued employment.
  2. The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.  

It is important to note that anti-discrimination laws prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in an investigation, proceeding, or lawsuit.  These laws also prohibit opposing employment practices that can be reasonably believed to discriminate against individuals.  The laws apply to employers with 15 or more employees and to all state and local governmental entities regardless of how many employees they have.  However, it should be pointed out that this does not mean that private businesses with fewer employees do not have a responsibility to prevent harassment.  Workplace harassment is not just an issue for larger businesses and employees at smaller companies are just as likely to experience discriminatory or harassing behavior. 

In fact, businesses with less than 15 employees should still have anti-harassment policies in place to prevent harassment and any litigation that could result from harassment allegations.  While federal anti-discriminatory laws don’t apply to businesses with less than 15 employees there are other consequences, like public backlash and lawsuits, that can arise if anti-harassment policies are not in place.  When it comes to how these laws are applied it is important to remember that, in the event of a legal proceeding or trial, Federal law is controlling unless the state’s law offers more protection to employees.


Types of Harassment

It is also important as an employer to understand the types of harassment that can occur in the workplace.  By understanding the different forms of harassment, you can better inform your employees about what is not acceptable behavior in the workplace and put into place clearly defined policies and procedures for addressing harassment in the workplace.  The most common types of harassment to occur in the workplace are:

Sexual Harassment – Under the law, sexual harassment can be divided into two different types, Quid Pro Quo and Hostile work environment.  Quid pro quo sexual harassment involves trading sexual favors for advantages in the workplace.  More specifically this means an employee’s submission to or rejection of a superior’s sexual demands that affects employment decisions, either positively or negatively.  The second classification of sexual harassment is hostile work environment.  Hostile workplace environment harassment makes the workplace intolerable due to constant sexual or gender-based activities or comments interfering with an employee’s ability to do their job. This type of harassment does not require authority to create such an environment and can thus be committed by coworkers or supervisors.  The U.S. Supreme Court has ruled that sexual desire or attraction “need not play a part in hostile work environment harassment”.  For example, a hostile work environment can be found when employees tease and torment another employee of the same sex unmercifully for reasons relating to the employee’s physical attributes, love life, etc.  Although many people assume sexual harassment only happens to women, it can involve men, women and people of the same or different genders.

Verbal Harassment- Verbal harassment occurs when one party belittles another party.  This belittling can take the form of name-calling, repeating slurs or yelling insults.  However, it is only illegal when it occurs based on protected characteristics outlined in the EEOC.  Due to this, a lot of verbal harassment can be especially damaging since it goes unnoticed and unresolved.

Cyber Harassment- As technology continues to develop and become integrated into the workplace and our personal lives, it also becomes more involved in harassment.  Technology and social media makes it easy to spread rumors, share private images, and send harassing message to coworkers.  Cyber harassment can humiliate victims and interfere with workplace productivity.  While there are no cyber harassment laws currently, employers should be aware of instances in which cyber harassment can occur.

Physical Harassment- Physical harassment, also referred to as workplace violence, is often very obvious and clear.  It involves physical attacks or threats of physical attacks.  Physical gestures, such as such as playful shoving, can sometimes blur the line between appropriate or not, since whoever is on the receiving end decides whether the behavior makes them uncomfortable.  If this type of harassment occurs it can result in a loss of morale and productivity, negative public relations, and even loss of life.  This is why it is important to clearly define what is appropriate and what is not in codes of conduct and policies.

Retaliatory Harassment- Retaliatory harassment is an often-overlooked type of workplace harassment.  This type of harassment most often occurs in response to someone who has already filed a discrimination complaint, has testified, is participating in an investigation, or pursuing a lawsuit under federal or state anti-discrimination laws.  Retaliation can include any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment.  As long as the employer’s adverse action would deter a reasonable person in the situation from making a complaint, it constitutes illegal retaliation.

Third Party Harassment- Another often-overlooked type of workplace harassment is third party harassment.  This is a type of harassment that is perpetrated by a third party or someone outside of the business against an employee.  Although the harassment is committed by non-employees the fact that it is happening to an employee is a cause for concern.  This type of harassment can sometimes be hard to address because it might not be reported by the employee for fear of losing business.  Although an employer may be unable to easily control third party actions, it is still legally obligated to respond to any third-party sexual harassment of its employees that is brought to the employer’s attention.

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