In my last column, I reviewed the measures available to employers to prevent and remedy workplace harassment. But, if harassment is occurring, employers’ awareness of it will always be secondary to that of employees. Employees themselves are in the best position to identify harassment as it occurs, and as such must have a concrete understanding of what exactly constitutes harassment in the workplace.
- Understand what unlawful harassment is.
Employees sometimes mistakenly assume that the meaning of the workplace harassment that is prohibited under federal law is the same as the dictionary’s definition of “harassment”— that it is any type of pestering, annoying, or tormenting behavior. But unlawful harassment violates the equal employment opportunity laws because it is a type of discriminatory treatment.
Consequently, unlawful workplace harassment is limited to unwelcome offensive or objectionable conduct that is based on race, color, religion, sex (including pregnancy), national origin, age, disability, or genetic status. In other words, the harassment is unlawful only if it is directed at the employee because of the employee’s particular protected characteristic. However unpleasant it is to work for a supervisor who pesters, intimidates, or humiliates employees, that harassment is not unlawful unless it is directed against employees on the basis of their protected characteristics of race, sex, etc.
- Forms of unlawful harassment.
Harassment typically takes one of two forms. The first, called quid pro quo (“this for that”), is the type of harassment now associated with Harvey Weinstein, in which an employee’s acceptance of unwelcome offensive conduct by “the boss” is made a condition of the boss’s providing a positive employment action or withholding an adverse employment action—the boss threatens to terminate, or take some other adverse employment action against, an employee unless the employee provides sexual attention to the boss. (Notably, an employee may have a discrimination claim where another employee is unfairly treated more favorably by a supervisor because the second employee has entered into a relationship with the supervisor.)
In the second form of harassment, known as “hostile-environment” harassment, an employee is subjected to offensive conduct by another employee that is so severe or pervasive that it creates a work environment that a reasonable person would consider intimidating, hostile, or abusive, thereby interfering with the employee’s work.
As with quid pro quo harassment, hostile-environment harassment is a form of discrimination because it creates burdens for a member or members of a protected group of employees, that are not imposed upon employees generally. Examples include workplaces in which employees are allowed to makes sexually-explicit comments or jokes; in which supervisors or other employees use or make racially or ethnically offensive names or comments; or in which employees persistently ask other employees for dates or other personal attention and won’t take “No” for an answer.
“Hostile environment” harassment must be severe or pervasive to create a legal violation—the objectionable conduct must occur repeatedly over a period of time, or it must be especially objectionable, such as sexual groping or assault.
Employers’ duty to protect employees from harassment extends to harassment by the employers’ customers and the employees of related businesses such as vendors, with whom its employees come into contact in their jobs. It may even extend to employees’ conduct outside both the workplace and working hours if the workplace was the initial point of connection between the employees.
- Is the conduct unwelcome?
A further critical aspect for harassing conduct to be unlawful is that it must be unwelcome by the employee who is the object of the potentially offensive conduct, and the harassing employee must know or have reason to know that his or her conduct is unwelcome.
Of course, much conduct, including that which involves racial, ethnic, and sexual slurs, is presumed to be unwelcome. On the other hand, the employees in a particular workplace may have no objections to, and even uniformly participate in, conduct that might otherwise constitute harassment, such as the telling of sexually-oriented jokes. Although there are a number of reasons the employer should still curtail such conduct, it is not likely to constitute unlawful harassment when the employees present do not regard it as unwelcome.
With regard to questions of sexual harassment, however, the unwelcome nature of certain types of conduct can often be uncertain and at issue, such as when an employee is seeking dates or a romantic or sexual relationship with another employee.
Nothing in the law prohibits employees from asking one another for dates, or from entering into romantic or sexual relationship with one another, by mutual, free choices. Once an employee has conveyed to another that his or her repeated requests are unwelcome, however, further requests may become unlawful harassment.
In addition, when a supervisor seeks romantic or sexual attention from a subordinate, the disparity in the parties’ respective power can make the actual nature of the relationship suspect because of the potential question of whether the subordinate’s consent to the relationship is genuinely voluntary. Consequently, many employers flatly prohibit supervisor-subordinate relationships so as to avoid such risks.
Finally, in the case of a workplace romance gone sour, potential issues of harassment can arise when only one of two employees who have been in a consensual relationship with each other wishes to end it. For that party to be able to claim harassment as a result of the other’s continued overtures, he or she must have affirmatively made clear to the other employee that further romantic attention or requests are no longer welcome.
- Does your employer have an anti-harassment policy?
Regardless of whether an employee is currently experiencing harassment, he or she should know whether the employer has an anti-harassment policy. Employers with 15 or more employees are subject to federal anti-harassment law and should have a publicized anti-harassment policy available to their employees. In fact, employers should provide employees training on the use of the policy. Even employers with fewer than 15 employees, however, should provide employees a means of reporting harassment both to maintain workplace harmony, and because they may be liable for harassing conduct under state-law based claims.
For employers that do not prohibit unlawful harassment by published policy and provide an internal reporting procedure for stopping it, the attention currently being paid to sexual harassment nationally may provide such employers an incentive for adopting anti-harassment policies and procedures.
Although an employee experiencing harassment is not required to have an attorney for any of the foregoing processes, individual situations vary and may have differing legal considerations and consequences. Nothing in the foregoing should be regarded as creating or offering an attorney-client relationship nor should it be taken as legal advice. For guidance on your personal situation, contact a qualified attorney.
Frank Albetta is an employment attorney whose practice focuses on advising and defending employers.
