Learn what constitutes harassment in the workplace and the types of harassment as defined by US law.
- Now this is probably the most layered topic of all. You tease a coworker in a playful way, you compliment a coworker's outfit, or maybe you were watching the latest comedy special on late night TV and heard the funniest, raunchiest joke, and you tell it to some of your coworkers for a laugh. Are these things considered harassment? They might be. Workplace harassment is defined by the Department of Labor in two categories, quid pro quo and hostile work environment harassment. Quid pro quo, or this for that, harassment involves a tangible work decision based on an employee's acceptance or rejection of sexual advancements, requests for sexual favors, or even unwelcome conduct of a religious nature.
This conduct most often takes place when an offender is in the position of power and influence that can materially affect the victim, for example, promotions, demotions, raises, firing, or other influential opportunities. You've seen those movies where the boss offers a raise or some other sweet deal in exchange for a roll in the hay or some other unlawful situation. Yep, that's quid pro quo, and it's illegal. Now when we're talking about hostile work environment harassment it can be a bit more nuanced.
Hostile work environment is the type of behavior from individuals that creates an atmosphere that fills intimidating, hostile, or offensive for someone else. The Department of Labor gives examples such as discussing sexual activities, telling off-color jokes concerning race, sex, disability, or other protected classes, unnecessary touching, commenting on physical attributes, displaying sexually suggestive or racially insensitive pictures, using indecent gestures, using crude language, sabotaging the victim's work, engaging in hostile physical conduct.
Now to determine if the conduct is unlawful, three factors are considered by the courts. First, is the unlawful harassing conduct based on a victim's protected class? Discrimination or harassment on the basis of race, color, religion, sex including gender identity, and pregnancy, national origin, age, disability, genetic information, sexual orientation, or parental status is prohibited. These are protected classes. And second, is the conduct unwelcome? Third, is the hostility subjectively abusive to the victim? The way the Department of Labor wanted to reduce the number of workplace harassment claims is by treating it as a misconduct.
So they instituted a harassing conduct policy. Their goal is to eliminate the behavior before it gets so severe that it's violating the law. This behavior is a violation of the policy if, one, it can reasonably be considered to adversely affect the work environment; or 2, an employment decision affecting the employee is based upon the employee's acceptance or rejection of such conduct. Keep in mind, these claims are determined on a case-by-case basis. You may not necessarily know if you're creating a hostile work environment for someone else because in some instances it's subjective.
However, if you keep it profesh all the time, this is something you may not ever have to worry about. This type of harassment can be avoided if you follow the guidelines of professionalism that got you the job in the first place. However, if you run across this issue as a manager, it's time to elevate the situation to your HR Department because everyone wants to work in an environment that is free of harassment. The point is, keep your hands to yourself, focus on your work, and be nice to everyone, but not too nice.
- Basics of employment law
- Torts and the court system
- Recognizing and mitigating risks
- When to bring in a legal professional
- What to do when facing an ethical dilemma
- Protecting your company and yourself from liability
- What constitutes wrongful discharge, harassment, and discrimination
- The corporate veil and your role as manager