Harassment is a form of unlawful employment discrimination. Workplace harassment is unwelcome conduct based on membership in a protected category. Harassment becomes unlawful if enduring offensive conduct is a condition of continued employment, or if the conduct is “severe or pervasive” enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Hostile work environment
Some factors that impact whether workplace conduct is so “severe or pervasive” that it rises to the level of creating a hostile work environment are:
- Whether a single incident is very severe, such as assault, battery, rape
- Whether conduct was repeated, or a pattern existed
- Whether the conduct was verbal, physical, or both
- Whether it was hostile or patently offensive
- Whether supervisors were involved in or condoned the conduct
- Whether others had a role or joined in perpetuating the harassment
- Whether other employees have complained of unwelcomed behavior
It is important to note that good intentions in a situation are not relevant to the impact of the conduct. The focus is on whether conduct was offensive, hurtful, derogatory, disrespectful, or otherwise inappropriate, and not necessarily on whether it was purposefully hurtful.
Inappropriate versus unlawful conduct
For many people, even a single act of inappropriate workplace conduct can have a lasting negative impact. Employers should not tolerate inappropriate conduct that could create a hostile work environment for anyone. When instances of inappropriate behavior are not addressed by employers, managers, supervisors, or coworkers, they perpetuate power imbalances that cause harm to individuals and to workplaces as a whole. On the other hand, if employees feel safe to talk about conduct that makes them feel uncomfortable, then employers are in a position to proactively address problematic behavior - hopefully before it rises to the level of becoming unlawful.
When is an employer liable for the harassment of its employees?
- If the harasser was a supervisor or manager, and they retaliated against the victim
- If the employer failed to take action to stop the conduct after a complaint was filed
- If the employer perpetuated or contributed to a discriminatory work environment after learning about it
- If anyone involved in a harassment complaint investigation was fired, disciplined, or retaliated against for their involvement in the investigation
- Note: an employer can also be liable for the harassment of third parties if it knew or should have known of the harassment and failed to take action to stop it