Workplace harassment is a type of discrimination that involves unfair treatment which is based on the employee having a protected characteristic. Also, the treatment impairs the employee’s workplace situation or employment arrangement.
To prove harassment in the workplace a person must show each of these elements. Specifically, (1) unfair and unwelcome treatment, (2) the presence of a protected characteristic, (3) that the harassment was done because of that person having a protected characteristic or belonging to a protected class, and (4) that the unfair treatment impacted the terms of the person’s employment arrangement.
What Is Harassment in the Workplace?
Basic Definition and Elements
Harassment in general terms involves unwelcome and unfair treatment. It is a form of discrimination that involves unfair actions taken against a person due to a characteristic that the person possesses. When it is done in the workplace, then this treatment against the employee needs to be severe enough to impact the terms of the employment agreement. Also, it needs to be a treatment that is done because that person has a protected characteristic or belongs to a protected class. For this latter factor, what is protected is a matter of federal and state employment law.
While it is typically the case that harassment in the workplace occurs when someone is directly the subject of harassment, it is worth noting that in some instances there can be a claim for a person that is not a subject of the unfair treatment, but that is otherwise impaired so that he or she can prove a claim for harassment in the workplace. In this circumstance, the person would need to show that the harassment against the person targeted is affected by the offensive treatment in a manner that impairs the employment relationship.
Recognizing the Forms of Harassment
Harassment in the workplace can take on many forms. Some people do not realize that they have a case for harassment because they assume it may only cover a small portion of what is indeed protected.
The following are types of harassment that may occur in the workplace:
- Sexual harassment – this involves unwanted sexual misconduct, which can include physical conduct, such as unwanted touching, but also expands much further than most people realize. For example, sharing sexual messages or pornography, making comments that put down someone due to his or her gender, requesting sexual favors (even in a humorous tone), or uncomfortable comments regarding someone’s sexual nature may all be potential forms of sexual harassment.
- Physical harassment – such actions will include physical damage or harm upon another person in the workplace. However, physical harassment does not always involve direct person-to-person contact. It can include physical illnesses in some circumstances.
- Digital harassment – this is like bullying or verbal harassment but takes place online, such as through social media or via the company’s electronic communication systems.
- Verbal harassment – this can include rude comments, racial slurs, inappropriate suggestions, unwanted jokes targeted towards a protected class or characteristic, comments that suggest a person is unqualified due to a characteristic they have, and more.
Since harassment can occur in many types of context, it is good to recognize that if you have a feeling that you may possibly be the subject of harassment in the workplace, then it is best to take some action soon. This could be speaking with your human resources department. However, it may involve going through legal action in some instances.
How to Prove Workplace Harassment – Elements
To prove a claim of harassment in the workplace, a person needs to show each of the below elements.
Unfair and Unwelcome Treatment
As an initial matter, some form of harassment needs to occur. It can include one of the types mentioned above and should be unfair and unwelcomed. If it occurs in the workplace, then it is typically conducted by another employee or supervisor of the person facing the harassment. However, the subject of the person with a claim for harassment need not always be the one that is directly targeted.
Protected Characteristic or Class
The harassment must be done due to the employee having a protected characteristic or belonging to a protected class. These are defined classifications within federal law upon unfair discrimination in the workplace and unfair age discrimination, along with applicable state laws on employment.
In general, the types of characteristics protected may include the following:
- Sexual Orientation;
- Socioeconomic status;
- Educational background; and
- Health conditions.
This list is only an example and is not exhaustive. Federal laws should be checked, especially depending on the type of occupation. Additionally, state laws may have broader definitions of what is considered a protected characteristic for purposes of workplace discrimination.
Harassment is Done Because of the Employee Having a Protected Characteristic
Harassment in the workplace is only illegal if it is done due to the employee that is the subject of the unfair treatment facing such conduct due to them having a protected characteristic, as defined by applicable state or federal law. Since state law may define which characteristics are protected, then it is important to consider the applicable state in addition to the federal laws on workplace discrimination.
If the unfair treatment is taken against the employee for some other reason besides them having a protected characteristic, then there is not a claim for harassment in the workplace. However, there may be another type of workplace discrimination or bullying claim. If you are unsure, then you should contact an attorney.
Impact on Terms of Employment Agreement
Finally, to prove a claim of harassment in the workplace, the unfair treatment must result in a negative impact on the terms of the employment agreement for the employee facing the harassment. This could include a lack of raise or promotion, termination, decreased vacation time, increased hours compared to peers, and more.
Contact Us Today to Discuss Your Harassment in the Workplace
If you are facing potential harassment in the workplace and are unsure if you have a claim that you can bring because of workplace treatment, then you should consult an attorney.
At Swartz Legal, we can discuss your potential claim given your situation to help you better understand what you need to do to prove harassment in the workplace and whether we can help with your case. To receive a call back from one of our attorneys to discuss your situation further, fill out our contact form and we will call you back as soon as we can.