While harassing conduct might seem obvious, many employers and employees do not understand the concept of actionable workplace harassment or are able to identify harassing conduct. Workplace harassment is generally defined as unwelcome conduct (verbal or physical) directed at an employee because of a legally protected characteristic that creates an intimating or hostile work environment, negatively affects the employee’s work performance or negatively impacts current or future employment opportunities. Anyone can be subjected to harassment. Employers may be responsible for harassing conduct that occurs based on race, color, national origin, sex (including pregnancy, sexual orientation and gender identity), religion, disability status or age. General teasing, casual comments or most singular instances of inappropriate conduct are likely not be actionable, but severe (very serious) or pervasive (repeated or frequent) unwelcome and inappropriate conduct is prohibited. 

An employer’s best defense against claims of harassment is to create a workplace environment where such conduct is not tolerated. This includes issuing and enforcing clear policies prohibiting harassment, instituting procedures for processing harassment complaints and ensuring that managers and supervisors are trained to identify harassing conduct and take corrective action as soon as possible when harassment occurs. An employee who believes that they have been subjected to harassing conduct should act as soon as possible to prevent the harassing conduct from becoming severe or pervasive. This can include telling the harasser that the conduct is unwelcome and it needs to stop. The employee may also report the harassing conduct to designated supervisory officials properly trained to receive and process such complaints.

Examples of Harassment

• Offensive or derogatory jokes;
• Racial, ethnic, religious or sexual slurs and insults;
• Efforts to demean or ridicule;
• Sharing or distributing demeaning or embarrassing jokes, memes or images;
• Pressure for dates or sexual favors;
• Some types of bullying;
• General intolerance of differences in culture.

With respect to liability, an is employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Finally, the employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action. Employees should report harassing behavior as soon as possible to avoid losing their rights.

Do you believe you have experienced unwelcome conduct resulting in a hostile work environment from either a supervisor or a coworker.  We invite you to contact us as soon as possible to discuss your rights.