What Is Harassment?

Understanding and Addressing Harassment in the Workplace

harassment at work

Workplace harassment is unwelcome conduct from a boss, coworker, group of coworkers, vendor, or customer whose actions, communication, or behavior mocks, demeans, puts down, disparages, or ridicules an employee. Physical assaults, threats, and intimidation are severe forms of harassment and bullying.

Harassment also may include offensive jokes, name-calling, offensive nicknames, pornographic images on a laptop, and offensive pictures or objects. Interfering with an employee’s ability to do his or her work also is considered to be a form of harassment.

Employees can experience harassment when they are not the target of the harasser because of the negative work environment that can develop because of the harassment.

The Details

In all or some parts of the United States, demeaning another individual regarding a protected classification is illegal and discriminatory. As a form of employment discrimination, harassment can violate Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA).

Protected classifications of employees, depending on your state, can include:

  • Age
  • Race
  • Religion
  • National Origin
  • Sex or Gender
  • Gender Identity
  • Sexual Orientation
  • Physical or Mental Disability
  • Color
  • Pregnancy
  • Genetic Information
  • Weight

According to the U.S. Equal Employment Opportunity Commission, harassment becomes illegal when:

  • Putting up with offensive and unwanted actions, communication, or behavior becomes a condition of continued employment, or
  • The behavior is severe and pervasive enough to create a work environment that any reasonable individual would find intimidating, hostile, or abusive.

Harassment against individuals also is prohibited as retaliation for filing a discrimination charge, participating in a harassment investigation or lawsuit under these laws. The bottom line is that employees have a right to challenge employment practices that they believe constitute harassment.

Demeaning an employee for any aspect of their parental status, appearance, weight, habits, accent, or beliefs can be considered harassment and can add to a claim about a hostile work environment.

Employers avoid harassment charges when they create expectations in their workplaces that all employees will treat each other with respect, collegiality, fairness, honesty, and integrity.

How rampant is harassment?

There is no way to know for certain just how rampant various types of harassment are in the workplace. Undoubtedly, many go unreported to employers or the Equal Employment Opportunity Commission (EEOC). Others are adequately handled by employers without the need for government intervention.

The EEOC releases detailed breakdowns of workplace discrimination every year. In 2017, the EEOC handled 84,254 charges and secured more than $125 million for victims of discrimination in private, federal, state, and local government workplaces.

Specific reasons for charges being filed are detailed below in descending order. Some charges include more than one reason, so percentages add up to more than 100:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 206 (0.2 percent)

Preventing Workplace Harassment

In any case of workplace harassment, an employer’s behavior must meet a certain standard in the eyes of the law. Just posting an anti-harassment policy, while a positive step, is insufficient to prove that an employer took workplace harassment seriously.

Employers should develop policies that clearly define inappropriate actions, behavior, and communication. The workforce should be trained and educated through the use of examples, and the policy must be enforced.

If harassment is mentioned to a supervisor, observed by a supervisor, or committed by a supervisor, the employer is particularly liable if an investigation was not conducted.

A clear harassment policy gives employees the appropriate steps to take when they believe they are experiencing harassment. Companies must be able to prove that an appropriate investigation occurred and that perpetrators found guilty were suitably disciplined.



Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Examples of Sexual and Non-Sexual Harassment

Example of sexual harrassment in the workplace

What is considered sexual harassment at work? And how does it differ from non-sexual harassment? Sexual harassment1 in the workplace is a form of discrimination that includes any uninvited comments, conduct, or behavior regarding sex, gender, or sexual orientation.

All employees – in any position, from management to entry-level or hourly staffers – should be aware of what qualifies as workplace harassment and avoid these behaviors or report them if they occur.

Sexual vs. Non-Sexual Harassment

Even though it’s the type of harassment that is most often reported, harassment in the workplace and hiring isn’t limited to sexual harassment. Other actions regarding religion, race, age, gender, or skin color, for example, can also be considered harassment if they interfere with an employee’s success or conjure a hostile work environment2 .

© The Balance, 2018

Examples of Sexual Harassment in the Workplace

It doesn’t matter who makes the offense. It could be a manager, co-worker, or even a non-employee like a client, contractor, or vendor. If the person’s conduct creates a hostile work environment, makes it difficult for an employee to work, or interrupts an employee’s success, it is considered unlawful sexual harassment.

Sexual harassment isn’t limited to making inappropriate advances. It includes any unwelcome verbal or physical behavior that creates a hostile work environment.

Here are some examples of sexual harassment in the workplace and information on how to handle it if you have been harassed at work.

    • Sharing sexually inappropriate images or videos, such as pornography or salacious gifs, with co-workers
    • Sending suggestive letters, notes, or emails
    • Displaying inappropriate sexual images or posters in the workplace
    • Telling lewd jokes, or sharing sexual anecdotes
    • Making inappropriate sexual gestures
    • Staring in a sexually suggestive or offensive manner, or whistling
    • Making sexual comments about appearance, clothing, or body parts
    • Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person
  • Asking sexual questions, such as inquiries about someone’s sexual history or their sexual orientation
  • Making offensive comments about someone’s sexual orientation or gender identity

These are just a few examples of sexual harassment.

Bottom line: Any actions or words with a sexual connotation that interfere with an employee’s ability to work or create an uncomfortable atmosphere are considered sexual harassment.

It’s also worth noting that victims of the harassment may not be just the target of the offense, but anyone who is affected by the inappropriate behavior.

That is, a co-worker standing nearby when inappropriate sexual comments are uttered may be affected, even if the comments aren’t directed toward them.

Examples of Non-Sexual Harassment in the Workplace

Behavior such as making racist or negative comments can also be construed as workplace harassment. Offensive gestures, drawings, or clothing also constitute harassment.

You should address this sort of workplace bullying in the same way that you would sexual harassment – by reporting it to human resources and, if nothing is done, by filing a harassment claim with the EEOC.

Instances of workplace harassment include discrimination such as:

  • Making negative comments about an employee’s personal religious beliefs, or trying to convert them to a certain religious ideology
  • Using racist slang, phrases, or nicknames
  • Making remarks about an individual’s skin color or other ethnic traits
  • Displaying racist drawings, or posters that might be offensive to a particular group
  • Making offensive gestures
  • Making offensive reference to an individual’s mental or physical disability
  • Sharing inappropriate images, videos, emails, letters, or notes
  • Offensively talking about negative racial, ethnic, or religious stereotypes
  • Making derogatory age-related comments
  • Wearing clothing that could be offensive to a particular ethnic group

Non-sexual harassment isn’t limited to these examples. Non-sexual harassment includes any comment, action, or type of behavior that is threatening, insulting, intimidating, or discriminatory and upsets the workplace environment.

How to Handle Workplace Harassment

Should you feel like you have been harmed by sexual or non-sexual harassment in the workplace, there are steps you can take to file a harassment claim with the Equal Employment Opportunity Commission (EEOC).

In order to successfully file such a claim, however, you have to be able to prove that a) your employer tried to correct the harassing behavior, and b) that the employee responsible for the harassment refused to cease and desist.

Thus, it is vital that you first report the harassment to your employer’s human resources department as well as taking detailed notes of the dates, times, and nature of the incidents. If attempts to remediate the situation fail, you must file your claim with the EEOC within 180 days by mail, in person, or by calling 800-669-4000.

It’s Important to Know the Rules

When you’re job searching, it’s important to know that rules apply as to what employers can and cannot ask, related to some of the harassment examples listed above.

During an interview, employers should not be asking about your race, gender, religion, marital status, age, disabilities, ethnic background, country of origin, sexual preferences, or age. If this happens, it should serve as a red flag that you may not want to pursue your candidacy with this employer.

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. 



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

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Proving Discrimination

Source: Workplace Fairness

 

Anti-discrimination laws make it illegal for an employer to take adverse employment action against you if you are a member of a protected class, or category of persons. Not all types of discrimination are protected under the federal anti-discrimination laws. Also, while the federal laws protect you against workplace discrimination, it is often very difficult to prove that discrimination occurred.

There are several questions that you can ask yourself to help determine whether you were discriminated against and whether you will be able to prove that the discrimination occurred.

  1. What is discrimination?
  2. What are the different types of discrimination claims that I could bring?
  3. What evidence is needed to prove my employer intentionally discriminated against me?
  4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?
  5. What if my employer denies discriminating against me?
  6. What can I do if my employer’s reason is a cover-up for discriminating against me?
  7. What evidence do I need if my employer’s seemingly neutral policy, rule or practice neutral practice had a discriminatory effect?
  8. What are the remedies if I win my discrimination case?


1. What is discrimination?

There are several federal laws that protect you from discrimination in the workplace. Each federal law makes it illegal to discriminate against certain categories of people, known as protected classes. Not all types of discrimination are protected under the federal laws. The federal anti-discrimination laws only protect you if you fall into a protected class or category. The protected classes differ under the various federal laws and are summarized below.

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex.Title VII also makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.

The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone because of age. This law protects people who are 40 or older.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.

Some state and local laws also make it illegal to discriminate against someone on the basis of gender identity, immigration status, language, family responsibilities, sexual orientation, and/or genetic information. See what categories your state protects against in our Filing a Discrimination Claim page.

2. What are the different types of discrimination claims that I could bring?

If you believe you have been discriminated against based on your status as a member of a protected class or category, there may be several types of claims that you could bring.

Discriminatory Intent/Treatment
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.

Disparate Impact
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule or practice rather than the intent behind it. The anti-discrimination laws make it illegal for a seemingly neutral policy, rule or practice to have a disproportionate adverse affect on members of a protected class. For example, a strength requirement might screen out disproportionate numbers of female applicants for a job, or requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect candidates of color.

Retaliation
A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard.See the Retaliation Page for more information about retaliation claims.

3. What evidence is needed to prove my employer intentionally discriminated against me?

There are two types of evidence that can be used to prove discrimination: direct and circumstantial.

Direct Evidence
Direct evidence is the best way to show that discrimination occurred. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action taken against you to your protected class status.

For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes.

Circumstantial Evidence
The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are too sophisticated and too well-trained by their own attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination.

4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?

According to the “McDonnell-Douglas Test,” named for a famous Supreme Court decision, an employee must first make out at least a “prima facie case” to raise a presumption of discrimination. To make out a prima facie case of discrimination, an employee must be able to answer “yes” to the following four questions:

  • Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
  • Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?
  • Did your employer take adverse action against you? Adverse action includes hiring, promotions, termination, compensation and other terms and conditions of employment.
  • Were you replaced by a person who is not in your protected class (or, in the case of age discrimination, someone substantially younger than you)? For example, if you are disabled, were you replaced by someone who is not disabled?

If you can show at least these things, the law will presume, since you were qualified for your job and then discharged in favor of someone not in your protected class, that your protected class status was the reason for the adverse action.

The “circumstantial evidence” test is flexible. It has been modified over time to avoid a mechanistic approach to discrimination cases. A person claiming discrimination who does not have direct evidence of discrimination must produce enough circumstantial evidence of discrimination to allow a jury to find that the employer acted discriminatorily. The law recognizes that persons can be discriminated against even if they were not replaced by someone outside of the protected class, for example during a reduction in force.

An employee may have sufficient circumstantial evidence to prove discrimination if they are able to answer “yes” to several of the following questions:

  • Were you treated differently than a similarly situated person who is not in your protected class?
  • Did managers or supervisors regularly make rude or derogatory comments directed at your protected class status or at all members of your class and related to work? For example, “Women don’t belong on a construction site” or “Older employees are set in their ways and make terrible managers.”
  • Are the circumstances of your treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
  • Does your employer have a history of showing bias toward persons in your protected class?
  • Are there noticeably few employees of your protected class at your workplace?
  • Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
  • Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
  • Are there statistics that show favoritism towards or bias against any group?
  • Did your employer violate well-established company policy in the way it treated you?
  • Did your employer retain less qualified, non-protected employees in the same job?

If you answered, “Yes” to the four questions in the McDonnell-Douglas Test and to several of the questions above, you may be able to establish a presumption that your protected class status caused the adverse employment action.

No single piece of evidence is usually enough to prove discrimination. On the other hand, there is no “magic” amount or type of evidence that you must have to prove discrimination.

5. What if my employer denies discriminating against me?

Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you.

In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. The law only requires the employer to articulate, or state, a reason for its conduct. It does not have to prove that it is the true reason.

A company can almost always come up with some reason for the action that it took. Once the employer articulates this reason, your presumption of discrimination is gone and you will have to offer additional evidence, as discussed further below.

If the employer cannot offer a legitimate reason for your termination, the presumption remains and you have proven a case of discrimination. However, don’t count on this happening. You may think, “My employer can never come up with a good reason for firing me!” Recall, however, that your employer doesn’t need a “good” reason, just any reason besides your protected status. The vast majority of employers can do this.

6. What can I do if my employer’s reason is a cover-up for discriminating against me?

Assuming that your employer can offer any explanation at all for terminating your employment, you must next consider whether you can prove that the reason is just a pretext, a cover-up for discrimination. You may be able to prove that the employer’s stated reason is just a cover-up or pretext for discrimination if you can prove any of the following:

  • The stated reason is factually untrue
  • The stated reason is insufficient to have actually motivated your discharge
  • The stated reason is so riddled with errors that your employer could not have legitimately relied upon it
  • Your protected status is more likely to have motivated your employer than the stated reason
  • Powerful direct or circumstantial evidence of discrimination

In order to successfully challenge your employer’s denial, the law requires you to prove that your employer’s stated reason is false AND that your protected status played a role in your termination.

7. What evidence do I need if my employer’s seemingly neutral policy, rule or neutral practice had a discriminatory effect?

Proving a disparate impact case is similar to proving a discriminatory intent case. First, you must use circumstantial evidence to create a presumption that the employer’s seemingly neutral policy, rule or practice had a discriminatory effect on a protected class or category. Next, your employer then has the opportunity to show that the policy, rule or practice was a job-related business necessity. If your employer is able to show that the policy, rule or practice was a business necessity, then you can still win if you are able to prove that your employer refuses to adopt an alternative policy, rule or practice with a less discriminatory effect.

8. What are the remedies if I win my discrimination case?

  • Back Pay. Back pay is lost earnings resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
  • Front Pay.Front Pay is lost future earnings resulting from the discrimination.
  • Lost Benefits. Lost benefits may include health care coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
  • Emotional Distress Damages. Emotional distress damages, which are also called pain and suffering, are mental or emotional injuries as a result of the discrimination.
  • Punitive Damages. Punitive damages are intended to punish the employer for particularly egregious conduct.
  • Attorneys’ Fees. In addition to the damages you can recover for your injuries, you can also win an award of attorneys fees, expert witness fees, and court costs.

 

This selection was originally excerpted from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.



Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Discrimination Against Women in the Workplace: Everything You Need to Know

Source: UpCounsel

Discrimination against women in the workplace is when an employer treats a female employee less favorably than the employer would a male.

Discrimination Against Women in the Workplace?

Discrimination against women in the workplace is when an employer treats a female employee less favorably than the employer would a male employee specifically because of the employee’s gender.

Examples of discrimination against women in the workplace are when a woman is rejected for employment, when a woman loses a promotion to a less-qualified male employee, or when a woman is harmed in any way because of her gender.

Workplace Discrimination Definition

Workplace discrimination is when an employer treats either a male or female employee differently specifically because of his or her gender. Workplace discrimination is more commonly called gender discrimination or sexual discrimination.

Gender Discrimination Definition

The terms “sex” and “gender” are often used interchangeably in everyday language. But they actually have very different meanings. The term “sex” is based on anatomical identity. Social scientists use it to identify a person as male or female. The term “gender” is a cultural term for the characteristics that are generally associated with maleness or femaleness. Discrimination can be based on sex, gender, or both sex and gender. But no matter which way it is labeled, discrimination is illegal.

Federal Laws Prohibiting Workplace Discrimination

  • Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination because of race, color, religion, sex, and national original. Title VII applies to all private employers, state and local governments, and education institutions that employ 15 or more individuals.
  • Rehabilitation Act of 1973. This law essentially applies the standards of Title VII to the federal government as an employer.
  • Equal Pay Act (EPA). The EPA prohibits sex-based pay discrimination between men and women who perform under similar working conditions. The EPA applies to all employers covered by the federal Fair Labor Standards Act (FLSA).
  • Pregnancy Discrimination Act (PDA). The PDA, a part of Title VII, prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.
  • Family and Medical Leave Act (FMLA). The FMLA prohibits discrimination against pregnant women and parents as well as employees with serious health conditions. In 2008, two new types of FMLA leave were created, which gives job-protected leave for family of the armed services members.

Workplace Discrimination: Promotions

In the past, qualified female employees have often been prevented from advancing to management positions in companies because of their gender. This term often used for this artificial barrier is “glass ceiling.” If this is the case, it is considered workplace discrimination against women and protected by Title VII.

Workplace Discrimination: Sexual Harassment

When a person in an authority role asks for sexual favors from an employee in exchange for a workplace benefit, it is called Quid pro quo sexual harassment. Some examples of a workplace benefit include a promotion, an increase in pay, and protection from being laid off.

It is also considered sexual harassment when a male co-worker or authority figure tells inappropriate jokes, makes threats, or exhibits any form of behavior that could intimidate a female employee or affect her ability to work. This type of sexual harassment falls under the label of “Hostile Work Environment.”

Workplace Discrimination: Breast-Feeding

Currently, there are no federal laws that protect nursing mothers. But some states have laws that make it illegal to discriminate against breast-feeding women. Some states take it a step further and require employers to give proper facilities for breast-feeding in the workplace.

Workplace Discrimination: Enforcement of the Law

The federal government agency responsible for investigating workplace discrimination complaints in workplaces of 15 or more employees is the Equal Employment Opportunity Commission (EEOC). In addition to federal laws against discrimination, there are also state laws against discrimination in most states. These states have their own agencies to enforce the laws.

Legal relief for victims of workplace discrimination may include:

  • Reinstatement
  • Back pay
  • Promotion
  • Compensatory damages (emotional pain and suffering)
  • Punitive damages (damages to punish the employer)
  • Payment of attorney and expert witness fees
  • Payment of court costs

To reduce the chance that discrimination will occur again, an employer may be legally required to take corrective action against the source of the discrimination and to stop the discriminatory practice involved in the case.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



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