Harassment is a form of discrimination protected under Title VII of the Civil Rights Act of 1964. For employers, harassment which is protected under law is defined as any unwelcome verbal or physical conduct based on race, color, religion, sex, national origin, age, disability, sexual orientation, or retaliation (such as retaliating against an individual for filing a harassment complaint or participating in an investigation) that occurs in the workplace.
Specifically, verbal or physical behavior is considered harassment when:
- The conduct is severe or pervasive enough to create a hostile work environment
- The conduct results in a tangible change in an employee’s employment status or benefits
Harassment Conduct
In order for comments or behavior to be considered harassment under law, they must be sufficiently offensive that they change the conditions of the individual’s employment and are so severe or pervasive that they create a hostile work environment. They must also be directed at the individual’s protected class (i.e. race, sex, religion, disability, etc.).
Harassment conduct could include offensive jokes, slurs, name calling, physical assaults, threats, intimidation, ridicule, mockery, insults, and offensive objects or pictures.
The frequency and severity of the conduct should also be considered when determining whether it constitutes as harassment. In addition, anyone in the workplace could be affected by the offensive conduct, not simply the individual whom the conduct or comments are directed.
Federal law does not prohibit behavior such as teasing, petty slights, and isolated incidents or comments that are not considered very serious. For example, bullying and general civility in the workplace are not covered under federal law.
Hostile Work Environment
A hostile work environment plays a key role in whether conduct is considered harassment. It refers to when comments or behavior from a coworker, manager, or non-employee (such as an independent contractor) interfere with an employee’s work performance or create an intimidating, hostile, or offensive work environment.
The Equal Employment Opportunity Commission (EEOC) has established the following factors for employers to use when determining if a hostile work environment is present:
- Was the conduct unwelcome or unwanted?
- Was the conduct verbal or physical, or both?
- Was the conduct a one-time occurrence or was repeated continuously?
- Was the conduct hostile and offensive?
- Did others join in perpetrating the harassment?
- Was the harassment directed at more than one individual?
Tangible Change in Employment Status or Benefits
For conduct to be considered harassment under law, it must yield a tangible change in employment status or benefits. Harassment which results in a tangible employment action occurs only when certain comments or behavior from a supervisor, manager, or individual in a position of authority results in a significant change in an employee’s employment status.
Tangible changes could include, but are not limited to, termination, demotion, reassignment, discipline, change in benefits, or change in compensation.
Employment actions are considered “tangible” if they result in a significant change to an individual’s employment status. Insignificant changes that do not affect an individual’s salary, benefits, duties, prestige, etc. may not qualify as tangible employment actions.
Your Responsibilities as an Employer
As an employer, you are obligated to prevent, educate, and deal with issues of harassment in the workplace because you (or one of your supervisors) can be liable for harassment of an employee if you knew, should have known, or failed to take corrective action on a complaint of harassment.
- Develop and implement a harassment policy
- Notify employees of their rights under law with regard to harassment
- Implement a code of conduct for acceptable and unacceptable employee behavior
- Educate and train employees on the kind of behavior that is unacceptable
- Train supervisors on harassment and ensure that they report incidents to HR or management
- Develop programs and strategies to prevent and correct issues of harassment
- Create and communicate harassment complaint procedures; treat all complaints seriously
- Conduct an immediate and thorough workplace investigation process for any complaints of harassment
