Workplace Threats: Harassment Or Performance Management?

Workplace 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, and the Americans with Disabilities Act of 1990. It involves unwelcome conduct based on a person's race, colour, religion, sex, national origin, age, disability, or genetic information. Harassment becomes unlawful when enduring the offensive conduct becomes a requirement for continued employment, or when the conduct is severe or pervasive enough to create an intimidating, hostile, or abusive work environment. While there is no definitive answer as to whether threatening write-ups at work constitute harassment, it is essential to understand the context, frequency, and impact of such write-ups to determine if they contribute to a hostile work environment or discriminatory behaviour, which could fall under the legal definition of harassment.

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What constitutes workplace harassment

Workplace harassment is a serious issue, and it is important to understand what constitutes it.

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, and the Americans with Disabilities Act of 1990. It is defined as unwelcome conduct based on a person's race, colour, religion, sex, national origin, age (over 40), disability, or genetic information. It can also include conduct based on sexual orientation, gender identity, transgender status, or pregnancy. Harassment can be verbal, physical, psychological, or online (cyberbullying).

Harassment becomes unlawful when enduring the offensive conduct becomes a requirement for continued employment, or when the conduct is severe or pervasive enough to create an intimidating, hostile, or abusive work environment. This can include offensive jokes, slurs, name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance.

In terms of liability, employers are generally liable for harassment by supervisors that results in negative employment actions such as termination or failure to promote. Employers are also liable for harassment by non-supervisory employees or non-employees if they knew or should have known about the harassment and failed to take prompt corrective action.

To prevent and address harassment, employers should establish effective complaint processes, provide anti-harassment training, and take immediate action on complaints. Employees should feel empowered to raise concerns and inform harassers that their conduct is unwelcome and must stop.

While the sources do not explicitly mention threatening write-ups as a form of harassment, it is clear that any form of unwelcome conduct that creates an intimidating, hostile, or abusive environment could constitute harassment. If these write-ups are being used as a tool to intimidate or threaten an employee, they could potentially fall under this category.

Who can be held liable for threatening write-ups

In the context of workplace harassment, threatening write-ups can be considered a form of unwelcome conduct that creates an intimidating, hostile, or abusive work environment. While there is no legal definition of what constitutes a write-up, it generally refers to a formal, written warning that an employee has violated workplace rules.

Both employers and employees can be held liable for threatening write-ups, depending on the specific circumstances. Here are some scenarios in which liability may arise:

Employer Liability

• Unfair or Inaccurate Write-Ups: If an employer issues a write-up that is unfair or based on false allegations, it can be considered a form of harassment or retaliation. Employees have the right to challenge these write-ups and seek legal recourse if they believe their employer is acting unjustly.
• Discriminatory Conduct: If the threatening write-ups are based on an employee's protected characteristics, such as race, colour, religion, sex, national origin, age, disability, or genetic information, the employer may be held liable for discrimination and harassment under the Equal Employment Opportunity Commission (EEOC) guidelines.
• Retaliation: Employers are prohibited from harassing or retaliating against employees who file discrimination charges, testify, or participate in investigations or lawsuits related to discrimination or harassment claims.
• Creating a Hostile Work Environment: Repeated or severe threatening write-ups, even if not directly related to protected characteristics, can contribute to a hostile work environment claim. A pattern of conduct that creates an intimidating or abusive atmosphere may constitute unlawful harassment.

Employee Liability

• Refusal to Sign or Acknowledge: While employees are not legally required to sign a write-up, refusing to acknowledge receipt can be considered insubordination or employee misconduct. Employers may take disciplinary action, including termination, if employees refuse to acknowledge the write-up.
• Aggressive or Inappropriate Response: If an employee reacts aggressively or inappropriately to a legitimate write-up, they may be held liable for their behaviour. Such reactions can escalate the situation and potentially lead to disciplinary action or termination.

It is important to note that the specific laws and regulations regarding harassment and write-ups may vary depending on the jurisdiction. Both employers and employees should seek legal guidance and understand their rights and responsibilities to ensure fair and lawful conduct in the workplace.

Reporting threatening write-ups at work

If you feel threatened by a write-up at work, there are several steps you can take to address the situation. Firstly, it is important to remain calm and remove yourself from the encounter if possible. You should then document the incident and any evidence, including saving any threatening messages or voicemails. If you feel comfortable, you can also seek support and protection from colleagues who can act as witnesses to the behaviour.

It is important to review your company's policies and procedures for reporting threatening behaviour and follow the outlined steps. This may involve notifying your supervisor or manager, or the human resources (HR) department. When reporting the incident, provide as many details as possible, including the exact words used in any threats. Ask your supervisor or HR professionals about the expected timeline for their decision, and follow up with them if you haven't heard any updates within that timeframe.

In the United States, federal and state laws protect employees from unfair and unwelcome treatment at work, including harassment. Harassment is defined as unwelcome conduct based on a person's race, colour, religion, sex, national origin, age, disability, or genetic information. If you believe the threatening write-up constitutes harassment, you can report it to the Equal Employment Opportunity Commission (EEOC) using their public portal. Keep in mind that there are time limits for reporting discrimination, usually within 180 calendar days.

It is important to note that employers are responsible for creating a safe workplace and taking appropriate steps to prevent and correct unlawful harassment. They should clearly communicate that unwelcome harassing conduct will not be tolerated and provide anti-harassment training to their employees. If you feel comfortable, you can inform the harasser directly that their conduct is unwelcome and must stop. However, if you feel that your employer has not adequately addressed the situation, you may seek legal advice or take further action.

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What to do if your employer takes no action

While threatening write-ups at work can be a form of harassment, the severity of the threat and the context in which it is made are important factors in determining whether it constitutes unlawful harassment. Harassment is generally defined as unwelcome conduct based on an individual's protected characteristics, such as race, colour, religion, sex, national origin, age, disability, or genetic information.

If you feel that you are being harassed at work and your employer takes no action, here are some steps you can take:

• Report the harassment to your employer: It is important to inform your employer about the harassment. They have a legal responsibility to correct the situation and protect you from further harassment. This may include interviewing you, the alleged harasser, and any witnesses. Your employer should also take steps to prevent the harassing behaviour from continuing.
• Follow your company's harassment policy: Review your company's policy on harassment to identify the designated person responsible for handling such issues. If you are uncomfortable speaking to this person, you can talk to your manager or another manager in the company.
• Document the harassment: Keep a record of any incidents of harassment, including dates, times, locations, and any witnesses present. Also, save any relevant emails, text messages, or other forms of communication that support your claim.
• Seek support: Speak to trusted individuals, such as family or friends, about what you are experiencing. You can also contact the Equal Employment Opportunity Commission (EEOC) or a legal professional for guidance and support.
• File a complaint with the EEOC: If your employer fails to take appropriate action, you can file a complaint with the EEOC. They will investigate your claim and determine if there has been a violation of federal anti-discrimination laws.
• Consider legal action: If the EEOC is unable to resolve the issue, you may consider filing a lawsuit against your employer for failing to address the harassment. Anti-discrimination laws prohibit retaliation against individuals who file discrimination charges or participate in investigations.

It is important to remember that you have rights as an employee, and your employer has a legal obligation to address harassment in the workplace. By taking these steps, you can protect yourself and seek accountability for any unlawful behaviour.

What constitutes a hostile work environment

A hostile work environment is detrimental to employee satisfaction and company culture. It can impact retention rates, engagement levels, and employee referrals. A hostile work environment is defined as a workplace where unwelcome conduct creates an intimidating, offensive, or abusive atmosphere, violating legal standards.

For a workplace to be considered hostile, the behaviour experienced must be unwelcome, interfere with the ability to complete work, and occur regularly, even after it has been reported. It is essential to consider the type of undesired behaviour or conduct experienced, how often it happens, how long it has been going on, and the context in which it occurred.

Harassment becomes unlawful when the offensive conduct becomes a condition of continued employment, or when the conduct is severe or pervasive enough to create an environment that a reasonable person would consider intimidating, hostile, or abusive. This includes unwelcome conduct based on a person's race, colour, religion, sex, sexual orientation, transgender status, national origin, older age, disability, or genetic information.

A hostile work environment can be caused by pervasive harassment, discrimination, or unwelcoming behaviour that severely impacts an employee's performance, job satisfaction, or mental health. This includes harassment based on race, gender, age, disability, or other protected characteristics, as well as offensive or intimidating behaviour such as bullying or threats.

It's important to note that a hostile work environment is not limited to internal team members. Anyone an employee interacts with during work, including clients, customers, or vendors, can contribute to a hostile work environment. Employers have a responsibility to prevent hostile or toxic workplaces and create a safe and positive environment where employees can thrive and grow professionally.

Frequently asked questions