An elderly employee is called “grandpa” by his coworkers. A young employee complains that the art on the office walls makes her uncomfortable. A supervisor jokes that a female employee might get a promotion if she gets a drink with him after work. A white employee sends derogatory emails to an African American employee. A female supervisor reprimands a male employee for being late to work three times in a row.
Which of these instances are forms of harassment? What legal responsibility does an employer have in these cases? This is the first article in a series that aims to answer these questions. Understanding what constitutes harassment, as well as how to prevent and respond to allegations of unlawful harassment, is essential to maintaining a healthy work environment and protecting your business’ reputation.
Harassment: A Definition
Harassment is generally defined as repeated, unwelcome behavior that threatens, annoys, intimidates, scares, demeans, or offends the victim.
Federal laws prohibit harassment related to discrimination. To qualify as such, the behavior must first be based on race, color, sex, religion, or national origin (Title VII); on age (ADEA); on disability (ADA); or on genetic information (GINA). Second, the victim must consider the actions abusive. Finally, the actions must be severe and pervasive enough to create a hostile environment by the standards of any reasonable person.¹ The line between teasing and harassment, between a healthy and a hostile work environment, is determined on a case-by-case basis. Importantly, harassment initiated against an employee because they opposed discrimination or participated in an investigation related to EEO statuses—called retaliation—also violates federal law.
Harassment based on the victim’s protected status can lead to an investigation by the Equal Employment Opportunity Commission. Claims of discrimination-based harassment have risen tremendously in recent years. In 2014, there were 26,820 harassment charges filed with the EEOC, resulting in $93.9 million in monetary benefits (down from $129 million in 2013). Of course, many more cases of harassment occur than are successfully charged. In a 2013 Huffington Post/You Gov poll, only 30% of respondents who experienced being sexually harassed in the workplace actually reported the harassment to their employer.
Outside discrimination, state laws are primarily responsible for governing harassment. In Texas, behavior that qualifies as harassment must involve obscenity; threatening to cause bodily harm or commit a felony against the victim or their family or property; conveying a false report that someone has suffered bodily harm or death; anonymous or offensive telephone calls; or repeated electronic communications “reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” ²
Actions that may be considered harassment
Derogatory comments or slurs
Obscene propositions
Assault
Unwelcome touching
Physical interference with work or movement
Derogatory posters, cartoons, or art
Threats
Sexual demands
Actions that would not be considered harassment
A hug between mututally consenting friends
A compliment on physical appearance
A single off-color joke
Failing to refill the office coffee pot
Employer Liability
There are two cases in which employers are legally responsible for harassment.
The Supreme Court held that employers have “vicarious liability” for harassment by supervisors in two cases decided in 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. In 2013, the Court clarified in Vance v. Ball State University that an employer is not liable for its employee’s discriminatory harassment unless the harasser is a supervisor of the victim—with “supervisor” newly defined as someone who has the ability to hire, fire, demote, promote, transfer, discipline or change the employee’s job duties. The EEOC addresses vicarious employer liability in detail.
The Court also decided that the employer is also liable for harassment, even when the harasser is not a supervisor, when the employer is found to be “negligent.” Negligence means 1) failing to have a strategy for preventing harassment, or 2) knowing about the conduct and failing to take appropriate steps.
In the next articles in this series, we will address best practices for harassment prevention and following up on harrassment allegations. Apart from hiring trustworthy supervisors, there is no better protection from costly, detrimental harassment charges than implementing wise policies and processes before a complaint is ever made. Seeking legal counsel from a qualified employment lawyer is advised if you discover there is a problem or potential problem.
As always, we are here to help you any way we can. Please don’t hesitate to call or email if you need us.
