Many employees believe that federal law protects them from any form of harassment while at work. This is just not true. Federal law only protects employees against harassment that is based on a protected trait, such as sex. Accordingly, federal law does not prohibit your boss from general abusive conduct—it must be based on a particular protected trait. Your boss can scream and yell at you. Your boss can impose unreasonable demands. What he or she cannot do is treat you less favorably than a similarly situated employee because of a particular characteristic – like your sex.
Even if the conduct is based on your sex, the law does not protect you from simple teasing or offhand comments. It also doesn’t protect you from isolated incidents that are not extremely serious. Instead, the conduct must be so objectively offensive as to alter the conditions of the your employment (a fancy of way of saying that the conduct must make your job actually different from the one your thought you were hired to do).
What is Sexual Harassment?
Unwelcome verbal or physical conduct based on race, color, religion, sex (whether or not of a sexual nature and including same-gender harassment and gender identity harassment), national origin, age (40 and over), disability (mental or physical), sexual orientation, or retaliation (sometimes collectively referred to as “legally protected characteristics”) constitutes harassment when:
1. The conduct is sufficiently severe or pervasive to create a hostile work environment; or
2. A supervisor’s harassing conduct results in a tangible change in an employee’s employment status or benefits (for example, demotion, termination, failure to promote, etc.).
Hostile work environment harassment occurs when unwelcome comments or conduct based on sex, race or other legally protected characteristics unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment. Anyone in the workplace might commit this type of harassment – a management official, co-worker, or non-employee, such as a contractor, vendor or guest. The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed.
Examples of actions that may create sexual hostile environment harassment include
• Leering, i.e., staring in a sexually suggestive manner
• Making offensive remarks about looks, clothing, body parts
• Touching in a way that may make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another’s body
• Telling sexual or lewd jokes, hanging sexual posters, making sexual gestures, etc.
• Sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images
• Office Romances that turn sour may also form the basis of a sexual harassment claim
Other actions which may result in hostile environment harassment, but are non-sexual in nature, include:
• Use of racially derogatory words, phrases, epithets
• Demonstrations of a racial or ethnic nature such as a use of gestures, pictures or drawings which would offend a particular racial or ethnic group
• Comments about an individual’s skin color or other racial/ethnic characteristics
• Making disparaging remarks about an individual’s gender that are not sexual in nature
• Negative comments about an employee’s religious beliefs (or lack of religious beliefs)
• Expressing negative stereotypes regarding an employee’s birthplace or ancestry
• Negative comments regarding an employee’s age when referring to employees 40 and over
• Derogatory or intimidating references to an employee’s mental or physical impairment
Harassment that results in a tangible employment action occurs when a management official’s harassing conduct results in some significant change in an employee’s employment status (e.g., hiring, firing, promotion, failure to promote, demotion, formal discipline, such as suspension, undesirable reassignment, or a significant change in benefits, a compensation decision, or a work assignment). Only individuals with supervisory or managerial responsibility can commit this type of harassment.
A claim of harassment generally requires several elements, including
1. The complaining party must be a member of a statutorily protected class;
2. S/he was subjected to unwelcome verbal or physical conduct related to his or her membership in that protected class;
3. The unwelcome conduct complained of was based on his or her membership in that protected class;
4. The unwelcome conduct affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with his or her work performance and/or creating an intimidating, hostile or offensive work environment.
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Sources: FCC.gov; EEOC.gov