Whether you are a business owner, manager, or employee, it's important to be knowledgeable about workplace harassment. While it's common for companies to have policies prohibiting harassment, not everyone fully understands what exactly makes specific types of actions or comments meet the true definition of workplace harassment.
Understanding Harassment at Work
At the most basic level, legally-defined workplace harassment is a specific type of discrimination. Workplace harassment exists when there is unwelcome conduct (verbal or physical) that is based on one or more protected characteristics, which are simply factors upon which it is unlawful to discriminate.
According to the Equal Employment Opportunity Commission (EEOC), "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."
Federally Protected Characteristics
Under federal law, there are ten protected characteristics, each of which is protected under a specific federal status.
|Protected Characteristic||Law Under Which Protection Is Defined|
|Race||Title VII of the Civil Rights Act (Title VII/CRA)|
|Sex||Title VII of the Civil Rights Act (Title VII/CRA)|
|Religion||Title VII of the Civil Rights Act (Title VII/CRA)|
|National Origin||Title VII of the Civil Rights Act (Title VII/CRA)|
Color (skin color)
|Title VII of the Civil Rights Act (Title VII/CRA)|
|Age (40+)||Age Discrimination in Employment Act (ADEA)|
Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act (ADAAA)
|Pregnancy||Pregnancy Discrimination Act (PDA)|
|Military Status or Obligations||Uniformed Services Employment and Reemployment Rights Act (USERRA)|
|Genetic Information (including family medical history)||Genetic Information Non Discrimination Act (GINA)|
Additionally, if an employee is retaliated against for exercising a right that is protected under a federal law, such as complaining about discriminatory treatment or participating as a witness in a harassment investigation, the act of retaliation can be considered discriminatory.
Every U.S. state must follow federal law, so the above characteristics are protected throughout the country. States may opt to expand protection beyond what the Federal Government mandates through their own legislation, and some have done just that. As an example, in California and Nevada, gender identity, gender expression and sexual orientation are protected characteristics.
See the website for National Council of State Legislatures for an overview of state-specific differences.
Types of Workplace Harassment
There are two types of workplace harassment: hostile environment and quid pro quo.
Hostile environment harassment occurs when an individual is subject to unwelcome demeaning, derogatory or threatening conduct or comments based on protected class that either:
- Unreasonably interfere with work performance or
- Create a work environment that could be seen as offensive, hostile or offensive to a reasonable person
Who Can Commit
Anyone in the workplace can commit this type of harassment - it is not limited to supervisory/subordinate matters. Hostile environment harassment can be committed by employees, managers, business owners and agents acting on behalf of the organization.
If company management knows about - or should have known about - harassing behaviors and failed to stop them, the company has liability. This is true whether or not there is a policy prohibiting such conduct, because the company is responsible not only for having a policy, but also for enforcing it. If an employee who feels harassed doesn't make a complaint to management, even if company policy says that he or she should do so, the company still has liability if hostile environment harassment took place.
Examples of hostile environment harassment could include such things as:
- Workplace nicknames based on race (or any protected characteristic)
- Telling jokes or making negative comments about people's religion (or any protected characteristic)
- Telling stories about your own or other people's sex life at work
- Looking at co-workers in a sexual way
- Communicating stereotypes related to protected class, such as associated negative traits with certain ethnicities or races
- Posting or distributing sexually explicit materials (or other offensive materials) based on protected class in the workplace
- Making fun of an employee who wants to join the military
- Making nasty comments about a pregnant employee's family goals or work plans
- Picking on someone because of medical conditions that run in her family
- Imitating or mocking coworkers who have physical or mental disabilities
Quid Pro Quo
Quid pro quo harassment is a specific type of sexual harassment, in which the granting or denial of employment benefits is linked to sexual activities. Quid pro quo is a Latin phrase that literally means 'this for that' and is often described as 'one thing in change for another.'
- A supervisor promising a promotion, pay raise, better shift, etc. in exchange for sexual favors or sexual conduct
- A supervisor demoting or refusing to promote an employee who refuses to participate in sexual acts or allow sexual behaviors
- The threat or promise of any 'tangible employment action' linked to sexual conduct of any type between a supervisor and a subordinate
The Supreme Court defines tangible employment action as a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."
Who Can Commit
Because of the nature of this type of harassment, it is supervisory subordinate harassment. However, there does not have to be a direct supervisory relationship within the chain of command. If the subordinate employee reasonably believes that the 'harasser' has apparent authority - which is the power to influence decisions about the individuals continued employment or terms and conditions of employment - then quid pro quo harassment may still occur.
In a situation of proven quid pro quo harassment where a tangible employment outcome actually occurred, employers are held to a standard of strict liability. This means that they will be held liable regardless of any steps taken to prevent or stop the problem.
Bullying - A Related Issue
Workplace bullying is a hot button issue that is getting a lot of attention in the news media. It's important to be aware that bullying and harassment are not the same thing, though there is some crossover. If bullying behavior is based on protected characteristics, then it is in fact workplace harassment. However, many behaviors considered to be bullying are not about protected class, and so do not meet the definition of workplace harassment.
If your boss yells and screams at you for making a mistake, being late, or for no reason at all, unless the yelling involves calling you names based on your religion, national origin (or any other protected characteristic), it's inappropriate and rude communication - but it is not workplace harassment. While companies can - and should - have policies prohibiting bullying and/or requiring professional communication in the workplace, the issue of bullying is different from the issue of harassment.