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Do you know what to do if you’re being harassed at work? What if the harasser is your supervisor? The EEOC reportedly sees an increase each year in harassment cases, and countless of them go unreported.
Workplace harassment is a big deal, and you should not tolerate this treatment in silence. Call us if you are in need of help.
What Constitutes Workplace Harassment?
Harassment is offensive conduct that is based on race, color, religion, sex, national origin, age, disability or genetic information. It also includes sexual orientation i.e., based on sex. The conduct must be unwelcome. According to the Equal Employment Opportunity Commission (EEOC), harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Misconduct can include offensive jokes, slurs, epithets or name-calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
Sexual harassment may be the most well-known kind of workplace harassment claim. Sexual harassment applies to both male and female. It happens when an employee faces unwelcome sexual advances, requests for sexual favors, or other comments or behaviors that are sexual in nature. It can also include offensive comments or behavior pertaining to sexual orientation. Unlawful harassment in the workplace can come from a co-worker, supervisor, or even someone who is not an employee of the company, such as a customer, client or vendor. We explain this is more detail in Sexual Harassment.
To determine whether a work environment is hostile or abusive, all of the circumstances must be reviewed. As Forbes explains this includes considering:
- the frequency of the discriminatory conduct;
- the severity of the conduct;
- whether it is physically threatening or humiliating, or a mere offensive utterance;
- whether it unreasonably interferes with an employee’s work performance.
What Does “Unwelcome” Conduct Mean?
In the context of stopping harassment, the legal element of “unwelcome” conduct is key. If anyone at work directs offensive actions toward you, you must make it clear to that person that you do not like the conduct and that you want it to end. You should demonstrate by your words and actions that you are offended and that you do not “welcome” the behavior.
When sexual harassment was first recognized as unlawful conduct at work, the issue was whether the company should be responsible because the young woman voluntarily participated in the vice president’s sexual advances. In the landmark case of Meritor Savings Bank v. Vinson, for over four years the male vice president constantly subjected Ms. Vinson to his sexual advances. It became so bad that he would follow her into the women’s restroom and force her to have sex with him. She never liked it. But because she was afraid of him, Ms. Vinson never reported her supervisor’s sexual misbehavior to management.
Although the trial court concluded that the sexual relationship was voluntary, causing no liability to the bank, the United States Supreme Court reversed and sent the case back for a more thorough investigation of the facts. The Supreme Court stated, “The correct inquiry is whether respondent, by her conduct, indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.”
Reporting Harassment to Management
Another way to stop harassment is to report the offensive conduct to HR or to your manager. In fact, if the harassment results in a “hostile work environment,” the employer can avoid liability if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. This means that if the company has a harassment policy that requires an employee to report harassment to HR or to management, if you fail to make that report, the company is not responsible. This defense arose from the United States Supreme Court from two cases and is known as the Faragher-Ellerth Defense.
The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. Also, a supervisor cannot require you to cooperate in the offensive conduct in return for work benefits, such as a raise or promotion. The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.
Contact An Attorney
Do not tolerate offensive conduct at work in silence. Report it to HR or management. Keep in mind, laws regarding workplace harassment should be enforced. Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with the EEOC.
If you think that there is unlawful harassment occurring at work, contact us.