The word “harassment” is often used loosely in the workplace to describe behavior from another colleague that is undesirable, creating tension and strained relationships. But in order to prove harassment by the legal standard, there is much more to “harassment” than being treated unfairly. Let’s take a look at how you can prove harassment at your place of employment.
What is workplace harassment
It is important to recognize what workplace harassment is because it is an issue that plagues many small and large businesses. Workplace harassment most commonly includes verbal and psychological harassment, but there are also other forms, such as physical and sexual harassment. In order to be considered “harassment”, the harassment must meet all of the following qualifications:
- based on the victim’s protected characteristic
- offensive in nature
- unwelcome behavior
- severe and pervasive enough to affect the employee’s ability to carry out their job
Each one of these elements will have to be addressed in court in order to prove your case.
What is considered to be a protected characteristic?
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA) were put into place to prevent discrimination against employees on the basis of sex, race, color, national origin, religion, age, disability, or any other protected characteristic. Discriminating against an employee in any of these areas is considered a type of harassment. State and local laws also prohibit discrimination.
Most general complaints in the workplace don’t qualify for workplace harassment unless the employee is being subjected to tougher supervision or more burdensome rules because of a protected characteristic.
What is considered offensive conduct?
There are many forms of harassment based on protected characteristics, including
- Derogatory jokes
- Racial slurs or threats
- Physical violence
In a sexual harassment case, the harasser might insist that the victim go out on a date with them or be overlooked in work opportunities. For example, a supervisor may give the victim an option of promotion if they perform a sexual act. A legal term for this type of situation is “quid pro quo,” meaning a favor expected in return for something.
Another type of workplace harassment is a hostile work environment. These types of situations make it difficult for the employee to carry out their work duties and responsibilities due to constant bullying, teasing, ridicule, belittling comments, sexual advances, etc. This type of harassment may be blatant comments about a person’s race or sex, or it may be more subtle. An example would be a supervisor treating an employee of a certain ethnicity much worse than other employees.
What is Considered Unwelcome Conduct?
In order for harassment to be considered illegal the conduct made by the harasser has to be unwelcome to the victim. Of course, in most cases, this isn’t an issue, because being ridiculed or referred to in a derogatory manner is most certainly unwelcome. The only time where this may be disputed is in sexual harassment cases, where the argument is that the victim was not offended by sexual advances or jokes. For example, if the harasser told sexual jokes or made sexual comments that did not appear to defend the victim, then the victim will have a more difficult time proving that the harassment was unwelcome.
What is considered severe or pervasive?
In order for harassment to be considered harassment, there must be a clear pattern of harassment incidents developed over time. This is somewhat subjective in a court. In most cases, one offhand comment or request for a date does not add up to harassment. But in some courts, there have been cases where one single act was found as harassment. The act would have been very extreme, however, such as physical assault.
There’s no set number of incidents to determine harassment. The court will look at the harassment as a whole, and determine whether it meets the qualifications of harassment.
What steps should you take?
If you are facing harassment at work, there are certain steps that you should take. These steps will help you in proving your case later on down the road, or even better, may stop the harassment altogether.
Step 1: Talk to the offender
Talking to your harasser may sound unpleasant, but it is necessary. Of course, if you fear for your safety, then you should skip this step. Confronting the person that is mistreating you lets them know that you do not appreciate their behavior and that it is offensive to you. Many times this is enough to get the harasser to stop. This is especially important in sexual harassment cases. If the person does not know that you find their behavior offensive, then they may see it as welcome. If the situation does not improve, continue on to Step 2.
Step 2: File a complaint with your company
Makes sure you file a complaint with your HR department outlining the harassment and keep a copy for yourself. This gives the company an opportunity to investigate your claims and take the necessary steps to resolve the situation. You are also preserving your rights. If the company fails to take action, or if the problem is not resolved it is important to move on to Step 3.
Step 3: Get legal help
If you are facing harassment at work, you should talk to an experienced employment lawyer. A skilled employment lawyer knows all the ins and outs of employment cases. For example, an administrative complaint must be filed with the Equal Employment Opportunities Commission before a lawsuit can even be filed. A lawyer can help you every step of the way from the administrative charge to a lawsuit to negotiating a settlement.
The lawyers at the Swartz Swidler, LLC, can help you figure out the best course of action for your case and protect your rights. Fill out the contact form today!