Why haven't we learned NOT to sleep with our co-workers? Before you ask them out on a date or make other suggestive comments, you might want to read this blog post about workplace harassment.
What is harassment? When can it get you fired? When can it get you sued?
I’m Lawyer Alexandria Serra, this blog post is inspired by my latest Lawyer Talk Thursday (catch it on Instagram @alexandriaserra), and you're about to find out.
Harassment or Employment Discrimination?
Harassment is a form of employment discrimination. Depending on the type and size of the company, it violates one of three federal laws. Title VII of the Civil Rights Act, the Age Discrimination and Employment Act, or the Americans with Disabilities Act.
A harasser does not necessarily have to be a direct supervisor; they can be another co-worker or non-employee. A non-employee can very well be a client, customer, contractor, etc. The same goes for the victim, they don’t have to be the person who was targeted during the incident to feel harassed. Remember that harassment can affect anyone and the offensive content can cause various levels of damage to the affected parties.
What is harassment?
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (if your 40 or older), disability, or genetic info. Petty comments, annoyances, isolated incidents (unless super serious) won't rise to the level of illegal conduct.
There are two main types of harassment:
- Quid pro quo
- Hostile work environment.
Quid Pro Quo
Quid pro quo is that I scratch your back, you scratch mine kind of harassment. For example, if your boss says, “you sleep with me, you get a promotion.” The point here is that someone will try to get you to do something you don’t want to in exchange for something that may seem beneficial to you. In reality, we all know this type of behavior makes us feel GROSS!
Hostile Work Environment
Hostile work environment is a little more subtle. It can result from unwelcome conduct from supervisors, co-workers, customers, basically anyone you have contact with. Examples are discussing sexual activities, off-color jokes, unnecessary touching (obviously), racial slurs, things like that; other sensitive pictures or topics. But when does harassing conduct violate the law?
Not always. It has to be 1) unwelcome and based on the victim’s protected status and 2) subjectively abusive to that person affected or objectively severe or frequent enough that a reasonable person thinks the work environment is hostile or abusive.
This is a case-by-case basis. Obviously, unwelcome touching is a given, but some off-putting sex jokes might not rise to the level of harassment; if it's an isolated incident or especially if you've participated in this type of conduct or conversation before. Doesn’t make it right for the workplace, but also doesn’t make it harassment either.
Sometimes hostile work environment cases are difficult to prove and are fact-specific. Occasional teasing, political discussions, or racy storytelling probably isn’t enough, BUT, remember, private employers have at-will employment in Texas, so if your boss doesn’t like that type of language, stories, or that behavior, she can fire you immediately.
There are two ways an employer is liable. It's automatic for the conduct of a supervisor that results in a negative employment action, like loss of promotion, cut in pay, or termination.
An employer can avoid liability in a hostile work environment case if it takes reasonable and prompt steps to correct the action, and the employee unreasonably fails to take advantage of that corrective action.
The employer has to know about it. So be sure to report any harassment. Preventative harassment training and precautions can also help employers stop harassment from happening in the first place. Understanding what workplace harassment is can be the reason why someone thinks twice about voicing that creepy compliment or offensive joke.
The bottom line is if you've experienced conduct that you find offensive, report it to your HR department or direct supervisor. Give them a chance to correct it. It may not be right that second.
If they don't do anything, the conduct continues, or they retaliate against you, you can report it to the EEOC. There's a local office here in El Paso. If they find your claim credible, they'll investigate it.
The last thing I want to say is this: know that if you see something, say something. You don't have to be the one experiencing the harassment to report it.
If you have any questions, feel free to email me at firstname.lastname@example.org.