Identifying and Preventing Harassment in the Workplace

November 2, 2019 Joe Badalis 0 Comments

In the era of “Me Too” and “Time’s Up,” more women are coming forward about their experiences with gender discrimination, domestic violence, and sexual harassment. According to a recent ABC News-Washington Post poll, 33 million American women have experienced sexual harassment in the workplace. But given the national rise in allegations and harassment charges, questions abound about what is considered harassment? Employees are understandably walking on eggshells, nervous that any of their actions could constitute harassment. Understanding your legal rights as an employee and understanding if the behavior of your coworkers qualifies as workplace harassment is crucial in this political climate. Here, we discuss what sexual and physical harassment look like, and how to prevent this form of harassment.

What is workplace harassment?

The United States Department of Interior (DOI) defines harassment under federal law as “unwelcome conduct that is based on race, color, religion, sex, national origin, age, disability or genetic information.”

According to the DOI, workplace harassment becomes illegal when the behavior “becomes a condition of continued employment” or fosters a hostile work environment. The U.S. Equal Employment Opportunity Commission (EEOC) identifies harassment as “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), and the Americans with Disabilities Act of 1990, (ADA).”

The type of harassment varies from sexual harassment to sexual assault to retaliation, threats, and intimidation. Retaliation is any action that might prevent a reasonable person from engaging in activity protected by anti-discrimination laws like reporting legal violations, fraud, or abuse, participating in lawsuits or whistleblower proceedings, and complaining about harassment.

The victim doesn’t necessarily have to be the person who was harassed, but essentially anyone who was offended by the behavior. However, for the conduct to be considered criminal harassment, it can’t be described as a minor annoyance. The behavior must provoke alarm or be considered offensive to a reasonable person.

Understanding what qualifies as harassment can be tricky. Essentially, any action that causes torment or alarm should be of concern. A minor slight or isolated incident may not be considered harassment under the law, and these issues could be easily resolved with discussion.

Examples of harassment

Workplace harassment doesn’t just include sexual harassment and harassment between individuals of different genders.

Workplace misconduct manifests in different ways such as verbal harassment like offensive jokes, mockery, referring to negative gender identity or ethnic stereotypes, slurs, inappropriate text messages, and bullying. The harassment can also include stalking, physical assault, battery, or threats. And the misconduct isn’t limited to physical contact. Harassing behavior can take place online with offensive electronic communication, disturbing social media posts, or cyberstalking.

Sexual harassment understood as  “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.”

The two main types of sexual harassment are quid pro quo and hostile environment. Quid pro quo sexual harassment in the workplace is when it is expressed that an employment decision is based upon whether or not the employee engages in the sexual act. For instance, the understanding that a promotion will be granted if an employee goes on a date with their supervisor.

Hostile environment sexual harassment occurs when the harassment creates an intimidating or abusive work environment.

Examples of sexual harassment include but are not limited to sexual or “dirty” jokes, commenting on one’s appearance, discussing one’s sexual activity, sharing explicit pictures, pressuring sexual favors or sexual advances, unwanted physical contact, sexual assault, and obscene gestures.

Being disqualified from a position based on a person’s physical appearance can be harassment. Repeatedly referring to a person’s ancestry and using that as a reason for poor work performance could qualify as harassment. A supervisor constantly asking out his or her subordinates and implying that a date could help them climb the ladder could be harassment. Coworkers constantly discussing their sexual activities in ways that could make others uncomfortable might be harassment. Being denied a promotion because of your gender or country of origin could constitute harassment.

The perpetrator doesn’t just have to be your boss or coworker. An individual in another department and even a non-employee (like an independent contractor or customer) can also be an offender.

But harassment isn’t just based on a person’s gender identity, sexual orientation, ancestry, or ethnicity. State laws differ on the basis of harassment. Some states have statutes prohibiting harassment based on whether the person is a smoker or if they are a recipient of public assistance. In Wisconsin and New York, for example, discrimination and harassment are prohibited based on a person’s arrest records or convictions. In the District of Columbia, discrimination is prohibited based on a person’s physical attributes, marital status, political affiliation, family duties, and matriculation. So if you didn’t get that job because you are a working mother or your political ideology differs from others at the company, that could be grounds for harassment.

Harassment under the law

The EEOC is responsible for laws on workplace harassment and discrimination. If you feel you have been subjected to harassment or discrimination, you should file any harassment charges with the EEOC.

An employer is automatically liable for any workplace harassment by a supervisor that results in termination, failure to promote or hire, loss of wages, or any other negative employment action.

However, the employer can avoid liability if the company or organization tried to prevent or immediately correct the harassing behavior or misconduct, or the employee who experienced workplace harassment failed to take advantage of any preventive or corrective measures offered by the employer.

The employer is liable for any harassment by a non-supervisory employee or non-employee if it knew about the harassment and did not take prompt corrective action.

The EEOC looks at each alleged incident of workplace harassment on a case-by-case basis. The EEOC examines the entire record of the incident, from the kind of behavior to when it occurred. After closely analyzing the factors, the EEOC makes a determination on legal action and whether to proceed with felony charges.

Preventing workplace harassment

Prevention is key when it comes to combating harassment at work. Employers who want to avoid nasty lawsuits and hefty legal costs need to ensure proper mechanisms to prevent and correct any unwelcome harassment. Companies need to make it clear that harassment will not be tolerated and foster an environment where employees feel comfortable raising concerns and know those concerns will be acknowledged. It is advised that employers set up complaint and grievance processes, provide anti-harassment training, and take swift action when an employee complains.

Employees are strongly encouraged to handle the situation internally before considering legal action or reaching out for legal advice. Employees should notify the harassing individual that the behavior is unwelcome and must stop immediately.  Employees should also report the harassment to management or Human Resources early on to prevent the behavior from escalating.

If the perpetrator is your boss or you feel uncomfortable approaching the individual, seek help from the Human Resources department. Some companies now employ a workplace complaint officer who you can reach out to for a confidential and free consultation.

Compared to previous decades, harassment in the workplace is gaining considerable attention now. Thankfully, individuals are refusing to tolerate discrimination and this movement is pushing employers to change their policies and take action.

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