Harassment and the Law

Before you embark on an investigation of workplace harassment you should understand the law prohibiting harassment and the relationship between an employer's policies and the law. Employers have obligations under various laws, contracts (such as union contracts), and their own policies to protect employees from harassment. Familiarity with the contents of published court decisions will give you ideas about what to look for during the investigation.

Laws Prohibiting Workplace Harassment
State and federal laws prohibit discrimination in the workplace. Some municipalities also have passed laws that expand the categories of people protected from discrimination at work. Harassment is considered one form of discrimination. Therefore, discriminatory harassment violates these laws. Most'state laws resemble the federal law and a state statute must provide at least as much protection against discrimination as the federal statute.

Some state anti-discrimination laws are even broader than the federal law. The differences between state and federal laws usually are unimportant when it comes to preventing and responding to harassment, but may affect when an employer may be held liable for harassment. For example, some states and municipalities have laws protecting employees from harassment based on sexual orientation whereas the federal law does not include sexu- al orientation among the protected categories.

Most employer policies afford broad protection under their nonharassment provisions. "Whether the harassment relates to a protected category (such as race) or an unprotected category (such as wearing striped clothing), it's good HR practice to respond appropriately to all complaints of harassment.

To violate the law, harassment must

1. be based on a status protected by law, such as sex, race, religion, disability, sexual orientation (in some jurisdictions); and
2. be either quid pro quo sexual harassment or be severe or pervasive enough to alter the conditions of employment.

"Quid pro quo" is a Latin term that means "this for that." It refers to the type of sexual harassment that involves threatening to exchange or exchanging a tangible work benefit, such as a raise in pay or the chance to be promoted, for sexual favors or some other action.

The "severe or pervasive" standard, which applies to hostile work environment situations involving sexual harassment land all other forms of harassment, looks to the seriousness of the conduct. Only harassment that is determined to be severe or pervasive violates the law. Because of this standard, most isolated incidents -- unless the incident is very severe -- will not violate the law.

Under federal law a variety of laws protect employees from discrimination (including retaliation). These laws include Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, and the Family and Medical Leave Act.

The categories that are protected under federal law include

• Race
• Sex (including pregnancy)
• Religion
• Color
• Age
• National origin
• Disability

In some states, counties, or cities, protections also extend to

• Marital status
• Sexual orientation
• Medical condition
• Physical appearance

Workplace rules that prohibit harassrnent -- including sexual harassment -- usually are broader than the law. Again, to violate the law, the conduct must be severe or pervasive. To violate internal workplace rules against harassment found in many organizational policy documents, the conduct need only be unwanted. For example, Paula Jones claimed that Bill Clinton, then governor of Arkansas (akin to being the state's CEO) invited her to his hotel room, exposed himself to her, and asked for sexual favors. Was this sexual harassment under the law? Not according to one federal court. Would such conduct have been a violation of most employers' rules prohibiting harassment? Almost certainly.

The Paula Jones case is an extreme example. To violate the law, the conduct must involve some tangible job benefit or else be ongoing or extreme. In other cases, courts have found that occasional references to race, even if they are derogatory, are not enough to violate the law. A California court found that calling an employee "Buckwheat" on one or two occasions, and sporadic other remarks that the plaintiff found raciallly offensive were insufficient for a finding of racial harassment. (See Etter -v- Veriflo Corp.) The court in the Etter case stated that to be actionab racial harassment must be more than "occasional, isolated, sporadic, or trivial acts." Despite this ruling and other decisions in similar cases, we hope that most employers agree that the type of conduct that was alleged in the Etter case would violate workplace rules.

Predicting what behavior a judge or jury will determine to be sufficiently severe or pervasive to violate the law is very difficult. Furthermore, if left unchecked, harassment that begins innocuously can become pervasive or severe. These are some of many reasons that employers should respond to all harassment-even harassment that appears to be isolated or trivial.

In 1999 the Equal Employment Opportunity Commission (EEOC) promulgated regulations that provide guidance on when an employer is liable for unlawful harassment by supervisors. Based in part on two United States Supreme Court decisions in sexual harassment cases (Burlington Industries -v- Ellerth and Faragher -v- City of Boca Raton), the regulations make it clear that the guidelines apply to all forms of workplace harassment that violate Title VII. The guidelines also provide extensive information on what is expected from employers in regard to the prevention of and response to harassment.

Unionized work settings may prohibit harassment in collective bargaining agreements (CBAS) or memoranda of understanding (MoUs) between the employer and the union. These documents form contractual obligations to treat harassment in certain ways. Affirmative Action plans also may include sections on harassment and how complaints must be handled. Employers should be aware of which laws and contractual obligations apply to them.

Definitions and Examples
As an investigator and an HR employee who must counsel other employees about your organization's policies, you need to have a clear understanding of the meanings of specific terms. What is harassment? What is discrimination? What is sexual harassment? Many of the terms you will encounter and use in an investigation have specific meanings as defined by law or by court interpretations.

Discrimination is treating people differently because they are members of a certain group. Discrimination is an action, not just an attitude. Having a prejudiced idea is not an action. A person can have a prejudice without engaging in actions that discriminate on the basis of that image or prejudice. For example, someone might have a mental image of doctors as being male (a sexist attitude-none of us is free from some of these ideas!) but still go to female doctors.

Attitudes are not always acted on and so do not necessarily result in discrimination. When a person in a position of authority makes a decision about some aspect of another person's employment because of a stereotype, however, prejudice moves from the realm of ideas and feelings into the realm of actions -- and thus, potentially, discrimination. For example, a manager might believe that "older workers are less flexible -- so they should be laid off first when our company experiences an economic down- turn." If the manager decides to lay off older workers on the basis of this belief, the manager has discriminated against the older workers.

Unlawful discrimination, in an employment setting, occurs when an individual is treated differently because he or she is a member of a protected category. The manager noted above has discriminated unlawfully against the older workers because the basis of his decision in the layoff is age, which is a protected category under federal law.

By contrast, consider a supervisor who dislikes people who wear stripes. The stripes look silly to this supervisor and she assumes that people who wear them are silly. She therefore does not assign important tasks to people who wear stripes.

This supervisor is discriminating. But wearing stripes is not indicative of being a member of a protected group. The discrimination, though unfair, is not illegal. Of course, this does not mean such discrimination is okay. At the very least, it constitutes poor supervision!

Harassment occurs when the discriminatory behavior is the manner in which an employee is treated or spoken to, rather than the terms and conditions of employment. As defined above, to be unlawful, harassment must be severe or pervasive. Unlawful harassment based on race often occurs in the form of racial epithets and the telling of jokes that are dis- respectful to a racial or ethnic group. As explained above, unless it is severe, a single instance of joke-telling or a single use of an epithet probably is insufficient to make the harassment meet the criteria for being unlawful. There must be a pattern, persistence, or severity to make the harassing behavior unlawful, but harassment need not rise to a standard of unlawfulness to be unacceptable, in the workplace.

Sexual harassment, simply defined, is when the harassment is sexual, such as sexual jokes, innuendos, requests for dates, and so forth. The harassment can be verbal, physical, or even visual. Some examples of sexual harassment include pressure for sexual favors, touching, cornering, suggestive letters or calls, pressure for dates, suggestive looks, sexual teasing, jokes, remarks, and gestures.

The two elements that must be present for behavior to constitute sexual harassment are

1. the behavior must be unwelcome, and
2. the behavior must be of a sexual nature.

The law defines sexual harassment in very specific terms. As stated above, legal liability for sexual harassment is limited to specific situations; however, an employer must necessarily use a broader definition in policies and procedures in order to prevent offensive behavior.

Legal Definition of Sexual Harassment
In the 1980s the EEOC issued guidelines defining sexual harassment. The guidelines are found at 29 Code of Federal Regulations Section 1604.11. In 1986 the United States Supreme Court approved this defini- tion in Meritor Savings Bank -v- Vinson. Since then, this definition has been quoted frequently as the legal definition of sexual harassment. It appears in countless court decisions and often is quoted in employer The definition is "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when

1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
3. such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.

The first two prongs of this three-pronged definition refer to quid pro quo harassment. The third prong refers to the "hostile work environment" type of harassment. Of course, some claims of sexual harassment will include allegations of both quid pro quo harassment and hostile work environment harassment.

Gender-Based Harassment Gender-based harassment (also called "sex-based harassment") is due to the employee's gender but is not overtly sexual. Examples may include behavior like excluding women from meetings, making statements that demean women, teasing women about not being as strong as men, or putting frogs in a woman's locker. This sort of harassment often happens when people of one gender work in an environment predominately composed of people of the other gender -- such as a woman working on a con- struction crew or a male nurse.

Same-Sex Sexual Harassment
Harassment is conduct; the gender of the parties involved is irrelevant. Most workplace harassment is male to female. According to EEOC statistics, in 1992, males filed 9.1% of the sexual harassment charges that were filed with the EEOC and state and local Fair Employment Practices agencies around the country. This figure has increased slightly every year. In 2001 the percentage of charges filed by men was 13.7%. The percentage reflects both societal norms (men usually are expected to be the aggressor in intimate relations) and workplace norms (men usually have more organizational power than women). As these norms change, the way sexual harassment is played out at work probably will also change.

Harassment also occurs from females to males, males to males, and females to females. All these forms of harassment are prohibited and the same standards should be applied to allegations of same-sex sexual harassment as to harassment between a male and a female. Same-sex harassment does not depend on the sexual orientation of any party. For example, a heterosexual male could be harassed by another heterosexual male and it could still constitute sexual harassment.

In Oncale -v- Sundowner Offsbore Servs., Inc., the Supreme Court determined that same-sex sexual harassment violates antidiscrimination laws when it is motivated by the individual's gender. It is difficult to predict when same-sex sexual harassment will be considered based on gender as opposed to some other reason. Therefore, the investigator should not be concerned with what a court of law will do but rather should focus on whether the behavior violates work rules prohibiting harassment. Also, remember that while most sexual harassment is male to female, a female can harass a male.

Impact versus Intent In harassment situations the harassment is evaluated based on the recipient's response rather than the perpetrator's intentions. If a reasonable person would find the conduct offensive, the fact that the perpetrator would not does not absolve that individual of responsibility. An employer can be held liable for harassrment (and actions can violate an employer's rules) even if the person engaging in the behavior meant no harm. This is why some experts in the field say the issue is the impact rather than the intent.

of course, not all actions that are considered harassment are equally serious. A boorish individual who is trying to amuse but instead offends generally will not be disciplined as severely as someone who intentionally tries to hurt someone. Intent is a relevant factor that the investigate want to understand, to the extent possible, so that the actions can be placed in the proper context. But the absence of any bad intent does not absolve employees of responsibility for violating employer rules against harassment. This concept clearly applies in third-party harassment situations, which are discussed next.

Third-party Harassment
Third-party harassment occurs when two individuals engage in consensual talk or conduct that affects a third party who does not welcome the behavior. This kind of harassment generally comes up in the context of sexual harassment when two or more co-workers enjoy engaging in sexual joking or conversation and do so with others present. While this sort of behavior seldom is severe and may not involve a specific target for the harassment, it can contribute to an environment of harassment because one or more of the noninvolved co-workers may become offended. Also, the conduct clearly is unprofessional. Even though the conduct is welcome between the participants, it should be stopped.

Retaliation
When a person reports or participates in someone else's report of harassment, he or she is protected from any form of retaliation. In order to violate the law, the retaliation must meet a certain legal threshold. But it is difficult to predict what a court will do. It is good HR practice to make sure all employees know retaliation is prohibited and to promptly respond to any complaint of retaliation. Many sexual harassment lawsuits come about because of the complainant's perception that the employer retaliated against him or her after he or she brought forward the complaint. The retaliation may take the form of being mistreated (such as shunned by co-workers) or it may be a demotion or termination. Remember, there need not be a determination that unlawful harassment has occurred for the anti-retaliation provisions to apply.

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