THE MAGAZINE

Preventing Harassment

By John M. Bagyi and Matthew G. Boyd

Types of Harassment

Harassment is a form of workplace discrimination and harassment charges can involve various types of parties and various types of activity. For example, while most claims still come from female workers, the number of sexual harassment charges filed by men has steadily increased. In 1992, just 9.1 percent of the sexual harassment charges brought before the EEOC were made by men. By 2007, this figure had grown to 16 percent.

Harassment can also encompass far more than unwanted male-female-related conduct. As noted, while the number of sexual harassment charges dropped significantly between 2001 and 2006, the total number of harassment charges did not. In other words, other forms of harassment have become growing concerns. In 2001, sexual harassment charges made up 63 percent of all harassment charges filed, while in 2006, sexual harassment charges made up only 52 percent of all harassment charges filed. This trend continued in 2007, when sexual harassment charges made up only 46 percent of all harassment charges. Harassment allegations based on protected characteristics other than sex—such as race, national origin, age, religion, and disability—have increased.

Identifying Harassment

The first step employers must take to protect themselves and their employees from workplace harassment is to identify what constitutes workplace harassment.

Workplace harassment is a form of employment discrimination. Harassment based on race, color, physical or mental disability, religion, age, national origin, or sex is prohibited under federal law. In addition, state laws prohibit harassment based on other protected classes, including marital or familial status and sexual orientation.

Sexual harassment. Harassment can take on different forms. Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other gender-based verbal or physical conduct, where submission to or tolerance of such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.

Importantly, sexual harassment does not require sexual attraction or desire. Treating employees differently because they are male or because they are female satisfies the “gender-based” requirement even when no sexual attraction exists. For example, when two male factory workers engage in horseplay that ends in one of the employees being “de-pantsed” and the perpetrator admits that he would not have done that to a female coworker, gender-based conduct has occurred, and a sexual harassment claim may result.

Sexual harassment takes two forms. The first form, called quid pro quo harassment, exists when submission to or rejection of the conduct is used as the basis for employment decisions affecting that individual. Quid pro quo harassment can only be perpetrated by someone with supervisory authority, making this type of harassment particularly troublesome.

One example of quid pro quo harassment is where a supervisor tells a staff member that she will receive a raise if she puts on a slinky black dress and accompanies him to dinner. Quid pro quo harassment is straightforward: “I will give you this if you give me that.”

The second, and more common, form is hostile environment harassment. In this type, the unlawful conduct interferes with an individual’s performance or creates an intimidating, hostile, or offensive environment. Hostile work environment is more nebulous than quid pro quo harassment. The harasser doesn’t offer or demand anything.

A hostile work environment exists when an employee is subjected to severe or pervasive conduct directed at him or her because of sex or gender. This conduct creates a hostile work environment. To meet that definition, it must be unwelcome, alter the employee’s work conditions, and create an abusive environment. Such behavior runs the gamut from inappropriate e-mail to sexual contact and includes “dirty” remarks, pornographic materials, leering, and repeated requests for dates.

Under the totality-of-circumstances test used by courts, a single incident of harassment, if sufficiently severe, could give rise to a viable harassment claim. However, a continuous pattern of less severe incidents of harassing behavior—such as nicknames, e-mail, or leering—may also result in legal liability when the work environment is permeated by inappropriate behavior.

Generally, the required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. Under this approach, even seemingly innocuous behavior can constitute harassment if repeated frequently. In recent years, harassment complaints involving egregious conduct, such as sexual assault or groping, appear less common than complaints involving sexual e-mails and conversations.

Harassment complaints often arise when a consensual workplace relationship turns sour. While the employer may have been unaware of such a relationship, its existence becomes clear after employees’ phone records and e-mail exchanges are examined. 

Other forms. Harassment directed at an employee because of his or her race, color, national origin, religion, age, physical or mental disability, or any other basis protected by applicable law is illegal and may result in a lawsuit. These other forms of harassment can be based on behavior similar to sexual harassment and can include verbal conduct such as threats, epithets, derogatory comments, or slurs; visual conduct, such as displaying derogatory posters, photographs, cartoons, or drawings, and physical conduct, such as gestures, assault, unwanted touching, or blocking normal movement.

Too often, employers and employees misunderstand the protections provided by antidiscrimination laws as extending to only minority employees. Harassment directed at any employee because of race or national origin, regardless of whether that race or national origin is considered a minority, is prohibited. Thus, it is just as inappropriate to make jokes, comments, or remarks about drinking engaged in by individuals of Irish national origin or the intelligence of individuals with Polish ancestry as it is to make such comments, remarks, or jokes about Hispanic or African-American employees.

Joking behavior between employees on friendly terms with one another may also create legal issues for the employer. Employers should, therefore, have policies against this type of behavior and take appropriate disciplinary action even if the employee at whom the conduct is directed does not take issue with it. This approach minimizes the potential for legal claims that may arise when formerly friendly employees have a falling out, and it prevents claims from other employees in the workplace who overhear such comments and take offense.

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