Eleanor Finch
Harassment is a serious issue that can occur in various forms, including physical, verbal, visual, or written. It is unlawful when offensive conduct is a condition of continued employment or is severe enough to create an intimidating, hostile, or abusive work environment. The Equal Employment Opportunity Commission (EEOC) investigates allegations of harassment by examining the nature of the conduct and the context in which it occurred, with a federal court making the final decision. Employers are encouraged to take preventive measures and provide anti-harassment training to their employees, creating an environment where employees feel comfortable speaking up. Harassment can be based on various factors, including race, sex, disability, religion, national origin, age, and more. It is essential to understand the legal definition of unlawful harassment to protect employees' rights and ensure a safe and respectful workplace.
| Characteristics | Values |
|---|---|
| Nature of conduct | Offensive jokes, slurs, epithets, name-calling, physical assaults or threats, intimidation, ridicule, mockery, insults, put-downs, offensive objects or pictures, interference with work performance, exclusion from social events, unwelcome sexual advances, etc. |
| Context of alleged incidents | The entire record is considered, including whether the conduct was unwelcome, severe, or pervasive, and whether it interfered with the victim's work performance. |
| Severity of conduct | Severe or pervasive enough to create an intimidating, hostile, or abusive work environment for a reasonable person. |
| Basis of conduct | Race, color, religion, sex, sexual orientation, gender identity, pregnancy, national origin, age, disability, genetic information, etc. |
| Type of conduct | Verbal, written, visual, or physical. |
| Victim | The victim does not have to be the person harassed but can be anyone affected by the offensive conduct. |
| Harasser | The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee (e.g., client, customer). |
| Resolution | Employers should establish an effective complaint process, provide anti-harassment training, and take immediate action when an employee complains. Employees should inform the harasser that the conduct is unwelcome and report it to management. If unresolved, an EEO counselor can provide a written notice to file a formal complaint. |
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What You'll Learn
Offensive conduct as a condition of employment
Offensive conduct becomes unlawful when it is a condition of continued employment. This means that enduring offensive conduct, such as offensive jokes, slurs, epithets, name-calling, physical assaults or threats, intimidation, ridicule, mockery, insults, put-downs, offensive objects or pictures, and interference with work performance, becomes a requirement for an employee to keep their job.
In the United States, unlawful workplace harassment is defined by three key factors: the conduct must be unwelcome, it must be either severe or pervasive, and it must interfere with the victim's work performance. For example, if an employee feels that they must feign interest in their supervisor's religious beliefs or activities for fear of ostracism or termination, this would constitute unlawful harassment as the offensive conduct is a condition of continued employment.
Similarly, if a pregnant employee's colleagues make offensive comments or engage in hostile conduct related to her pregnancy or related medical conditions, and this becomes a condition of her continued employment, this would also be considered unlawful harassment.
It is important to note that petty slights, annoyances, and isolated incidents may not rise to the level of illegality. The conduct must create a work environment that a reasonable person would consider intimidating, hostile, or offensive, and it must interfere with the victim's work performance.
If an employee experiences unlawful harassment in the workplace, they should first inform the harasser directly that the conduct is unwelcome and must stop. They should also report the harassment to management at an early stage to prevent escalation. If the issue cannot be resolved internally, the employee may seek legal counsel and file a formal complaint with the Equal Employment Opportunity Commission (EEOC).
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Severe or pervasive conduct
For conduct to be considered unlawful, it must be unwelcome and either severe or pervasive, and interfere with the victim's work performance. This means that the conduct must be severe or pervasive enough to create an intimidating, hostile, or offensive work environment for a reasonable person.
Determining whether the conduct is severe or pervasive enough to be considered illegal is done on a case-by-case basis. The nature of the conduct and the context in which it occurred are considered.
Examples of offensive conduct that may constitute severe or pervasive behaviour include offensive jokes, slurs, epithets, name-calling, physical assaults or threats, intimidation, ridicule, mockery, insults, put-downs, offensive objects or pictures, interference with work performance, and exclusion from work events or activities.
The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee, such as a client or customer. It is important to note that the victim does not have to be the direct target of the harassment but can be anyone affected by the offensive conduct.
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Interference with work performance
Verbal harassment may include insults, derogatory slurs or comments, or name-calling. For example, comments such as "you don't look like a doctor" or "you don't sound like a lawyer" could be considered verbal harassment if they are based on an individual's protected characteristics, such as race, colour, religion, sex, national origin, age, disability, or genetic information.
Written harassment could take the form of offensive notes, emails, or messages. Visual harassment might include displaying offensive objects or pictures in the workplace. Physical harassment could involve assault, threats, or intimidation.
Harassment becomes unlawful when offensive conduct is a condition of continued employment or is severe enough to create an intimidating, hostile, or abusive work environment. This means that the conduct must be unwelcome and interfere with the victim's work performance to be considered unlawful.
It is important to note that petty slights, annoyances, and isolated incidents may not rise to the level of unlawful harassment. However, if the conduct is severe or pervasive and creates a hostile work environment, it may be considered unlawful.
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Protected status
Harassment is unlawful when it is based on an individual's protected status or protected activities. This includes categories such as sex (including pregnancy), national origin, race, colour, age, disability, religion, or genetic information.
In the United States, the Equal Employment Opportunity Commission (EEOC) prohibits employers from retaliating against employees and applicants for their participation in protected activities. This is considered “retaliatory harassment”.
In the context of workplace harassment, an individual's protected status may include their religion or pregnancy status. For example, in a case described by the EEOC, a devout Christian employee named Imani experienced harassment from coworkers related to her religious beliefs and practices, including offensive comments, exclusion from office parties, and offensive language and imagery. Similarly, an employee named Kristina experienced harassing conduct from her colleagues related to her pregnancy-related medical condition, with her coworkers accusing her of "getting pregnant 'just so she can kick back, relax at home on the couch, and collect a paycheck.'"
In both of these cases, the harassing conduct was based on the individuals' protected status, and as such, it would likely be considered unlawful by the courts.
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Discrimination
In the context of unlawful harassment, discrimination often manifests when an individual is subjected to offensive conduct or actions because of their protected characteristics. For example, an employee being subjected to offensive jokes, slurs, or derogatory comments related to their race, religion, or gender identity would constitute unlawful harassment.
Additionally, discrimination can occur when an individual is treated unfavourably or is denied opportunities because of their protected characteristics. For instance, an employee may experience discrimination if they are repeatedly passed over for promotions or are denied benefits that their colleagues enjoy because of their age, disability, or religion.
It is important to recognise that discrimination can be subtle and indirect. For instance, an employer may create a work environment that is hostile or offensive to individuals of a particular religion without explicitly stating their discriminatory intent. Alternatively, discrimination may be overt and intentional, such as when an employer makes discriminatory remarks about an employee's national origin, leading to a hostile work environment.
In conclusion, discrimination plays a significant role in unlawful harassment, as it often serves as the underlying motive or rationale for the harassing behaviour. Understanding what constitutes discrimination is crucial in identifying and addressing unlawful harassment in the workplace. By recognising the various forms that discrimination can take, individuals and organisations can better promote equality and respect in the workplace, fostering an environment that is safe and inclusive for all.
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Frequently asked questions
Unlawful harassment is unwelcome conduct that is based on a person's protected characteristics, such as race, colour, religion, sex, national origin, age, disability, or genetic information.
Unwelcome conduct can be verbal or physical and includes, but is not limited to, intimidation, ridicule, insults, offensive jokes, slurs, epithets, name-calling, threats, mockery, put-downs, offensive objects or pictures, and interference with work performance.
Harassment becomes unlawful when enduring offensive conduct is a condition for continued employment or when the conduct is severe or pervasive enough to create an intimidating, hostile, or abusive work environment for a reasonable person.
If you experience unlawful harassment, you should inform the harasser directly that their conduct is unwelcome and must stop. You should also report the harassment to management or a supervisor at an early stage to prevent escalation. If the situation cannot be resolved informally, you may need to file a formal complaint or seek legal advice.
