Unlawful harassment takes many forms. It is not only degrading, but it also is something that rarely resolves itself without prompt and effective action. The effects of harassment can interfere both emotionally and economically for many years. Employees who complain or support other victims of harassment also must be vigilant in watching for signs of retaliation.
Conflict on the job is a reality of the workplace. From the employee’s perspective, harsh treatment often is characterized as “harassment.” It is very important, however, to understand that not all workplace conflict is something the law will address.
There is no law that generally bans “harassment.” Rather, harassment is only one kind of conduct that is prohibited under the law if it related to an unlawful motive or is based on a protected characteristic. The most common example people often think of in terms of harassment is sexual harassment, which generally involves such things as requests for sexual favors or creating a hostile or demeaning work environment (improper language, pictures, etc.). Harassment and discrimination on the basis of age, gender, race, color, religion, national origin, and certain disabilities also is unlawful under federal law. Harassment and discrimination to advance some kind of illegal or unethical activity, or to cover it up, may be covered by state law depending on the circumstances.
In terms of harassment, federal law requires that the harassment be either “severe” or “pervasive.” A severe form of harassment may include some form of physical conduct or extreme abusive verbal conduct. If the conduct is less severe, but the employee is regularly exposed to it, the conduct may be considered “pervasive.” For example, in terms of sexual harassment, a supervisor or co-worker telling a dirty joke once is unlikely to be considered “severe” and, if it is a stray remark or uncommon occurrence, it may be difficult to show that such conduct is “pervasive.” However, even a single incident of an unwanted grabbing or physical contact can, in some situations, be considered “severe” and may satisfy the legal standard for harassment.
If the conduct is considered harassment, the employer may be liable if it did not take the proper steps to prevent or respond to the harassment. In cases involving harassment by a supervisor, the employer can avoid any liability if it took reasonable steps to prevent the harassment (such as having an effective policy against harassment with a good complaint procedure that is communicated well to employees) and the harassed employee did not reasonably take advantage of the employer’s policy or system. For example, in terms of a race harassment case, if a supervisor makes racist comments that violates an employer’s policy, the employer may not be liable if the employee did not make use of the policy to report the wrongdoing. Courts recognize that an effective policy must allow the employee to complain to someone other than the harasser.
If the harasser is not a supervisor, the standard is different. An employer is liable for harassment by coworkers or others if the knew or should have known about the harassment and failed to take appropriate action to prevent or stop it. In other words, if management knew that the employee (or in some cases other employees) were being harassed and did nothing about it, then the employer may be liable. Usually, this standard requires that the harassed employee complained and the employer did not take reasonable steps to keep the harassment from happening again. Sometimes, however, it can be shown that the employer knew and should known about the harassment without the employee complaining.
Employees who report harassment, or support others that do, are often vulnerable to retaliation. Even if the actions complained about are not severe or pervasive, complaining to management, filing charges, or speaking out (even on behalf of others) cannot be the basis of an adverse action by the employer, such as the cutting of pay, an undesirable reassignment, discipline, or discharge.
The bottom line for the employee is essentially the same if you feel you are being harassed. First, find the employer’s policy, which should be in an employee handbook or posted in the workplace. Submit your concerns, in writing if possible. Put a date on the document and keep a copy at home. Your complaint should:
• Be specific as to the facts. Provide the who, what, when, and where.
• Include everything that relates to the harassment itself.
• If there are witnesses or documents (including emails or pictures) that support what you are saying, provide copies.
• Be respectful and business-like in tone. You don’t need legal jargon or threats of legal action to be taken seriously. In fact, these usually reduce your credibility. Stick to the facts.
Most claims of harassment discrimination in violation of federal law must first be submitted to the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the most recent incident of harassment before proceeding in court.
Some employees who feel harassed quit their jobs and then seek to bring legal action. In order to quit and recover, an employee must show “constructive discharge.” This is another legal hurdle that can be quite difficult in some circumstances. Any employee that is even considering resigning in response to harassment should consult legal counsel from an employment lawyer before doing so in order to understand the possible consequences.
To discuss your questions regarding sexual harassment or any other form of employee harassment, contact Stephenson & Murphy, LLC.