What Is Harassment?
Harassment is any employment discrimination that violates Title VII of the Civil Rights Act, the Age of Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), or any other statewide statutes.
Harassment is defined as being unwelcome conduct that is based on race, color, religion, sex, sexual orientation, disability, age, national origin, or genetic differences. Offensive conduct may include: offensive jokes, slurs, name calling, physical assaults, threats, intimidation, ridicule, insults, offensive objects or pictures, or an overall interference with your work performance.
When Is Harassment Illegal?
Harassment can be considered illegal in two situations: 1. Enduring the offensive conduct becomes a condition of continued employment (that is, if you don’t say anything against the harassment out of fear of losing your job – or if you receive more harassment for filing an HR complaint), and 2. The offensive conduct is severe enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. This means that for the most part, slight comments and isolated insults will not be considered illegal, but if there is persistent harassment against you that makes you feel uncomfortable at work, you may have a case. An important thing to note is that workplace harassment cases are typically considered federal crimes as well.
The Equal Employment Opportunity Commission encourages that employees bring up any harassment concerns early with their employer. This gives the employer time to try and correct the issues before a formal complaint is filed.
What Is The Employer’s Liability For Harassment?
An employer (as well as a supervisor) can be held liable for harassment if the situation results in a negative employment action. For instance, if an employer fires, fails to promote/hire, or imposes a loss of wages, the employer will be liable. An employer may avoid liability in these situations only if they can prove that: 1. They reasonably tried to prevent and correct the harassing behavior, and 2. The employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer. Essentially, if the employer knew that harassment was taking place and did not attempt to fix it, they can be held liable for damages.
Who Is Considered A ‘Supervisor?’
Law defines a ‘supervisor’ or ‘agent’ as being “anyone with immediate (or successively higher) authority over the employee.” In other words, an employee’s ‘supervisor’ is considered anyone who has authority to undertake or recommend tangible employment decisions affecting the employee, or has authority to direct the employee’s daily work activities.
Is It Considered An Adequate Complaint Procedure If Employees Are Instructed To Report Harassment To Their Immediate Supervisors?
No, merely instructing employees to report harassment to their immediate supervisor is not considered an adequate complaint procedure due to the fact that their direct supervisor may be the one committing the harassment.
What If My Employee Failed To Follow The Complaint Procedure That I’ve Set Up – Am I Still Liable For Damages?
No, unless the harassment resulted in a tangible negative employment action, then you, the employer, will not be held liable. As long as you can prove that the employee acted unreasonable (that is, they weren’t prevented from following correct complaint procedure due to the fear of retaliation), then you will be off the hook.
If I’ve Filed A Complaint To My Management About Harassment, Should I Wait To Hear Back From Them Before Filing A Charge With The EEOC?
It’s never a bad idea to wait and see if management corrects the harassment before filing a charge. Your employer will often try to prove in court that you acted before they could make corrective measure in these situations, so you may as well wait a week or so to see if any action is made. The deadline for filing an EEOC charge is either 180 or 300 days after the last date of alleged harassment, depending on the state in which the harassment took place. This deadline will not be extended due to the employer’s internal investigation of the complaint though, so be sure to file your complaint before 180 or 300 days.