The workplace environment has become an increasingly sensitive place. Off color jokes, birthdays cards with “Over the Hill,” “Men Working” signs, risqué images and name calling or epithets might be evidence of workplace harassment. Liability for harassment arises from many sources—for example: the Civil Rights Act of 1964 (known as Title 7, applying to employers with 15 or more employees); the Age Discrimination in Employment Act of 1967 (ADEA, 20+ employees); the Americans with Disabilities Act of 1990 (ADA, 15+ employees); plus potential state statutes—thus harassment is a complicated issue fraught with peril for the unwary.
Unlawful harassment is offensive, unwelcome conduct concerning protected categories that is so severe or pervasive it affects the terms or conditions of employment. To be unlawful harassment, offending conduct must: relate to a protected category; be unwelcome, offend a reasonable person, and is severe or pervasive. Protected categories include race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, and genetic information. Depending on the state, marital status, military service, political affiliation, or matriculation (i.e., GED v. diploma) might be protected categories. Unwelcome behavior means any conduct that would be offensive to a “reasonable” person in the situation. If an employee engages in the behavior, however, that same person cannot later claim to feel harassed by the complained of conduct. Severe behavior is an incident that is extremely offensive to the recipient. In contrast, pervasive behavior is a pattern of conduct that involves constant, continuing or repeated incidents of harassment. Of course, not all behavior, even if annoying, qualifies as harassing. Petty slights, annoyances, and a difficult or obnoxious co-worker, in and of themselves, do not give rise to unlawful harassment. Conversely, a co-worker that continuously comments on a protected grounds—e.g., race, age or gender—might well create a hostile environment that could lead to liability. It is also important to note that the harassed employee does not have to be the intended recipient of the harassing conduct, but can be any person affected by the conduct.
Under the rubric of harassment law, not only is an employer liable for the actions of its employees but also for the actions of non-employees affecting the workplace environment. That is, if the employer is aware that a non-employee is harassing employees and the employer takes no action to stop the behavior, the employer might become liable. Therefore, it is important to keep an eye on the behavior of independent contractors and even customers.
To best avoid workplace harassment liability, employers should have and communicate a comprehensive harassment policy. Additionally, if the employer receives a complaint alleging harassment, the employer should take quick action to investigate, document, and attempt to resolve the issue. Equally important, make sure there is no retaliation against the employee alleging the harassment. Demoting, firing, denying a raise, changing the working hours or conditions of the complaining employee may be construed as retaliation and cause liability in its own right.