Workplace Harassment: What It Is and When It Can Be Unlawful
Workplace harassment is covered by federal employment discrimination laws when specific legal conditions are met.
The U.S. Equal Employment Opportunity Commission (EEOC) describes harassment as unwelcome conduct based on a protected characteristic, including race, color, religion, sex, national origin, age 40 or older, disability, or genetic information.
The EEOC also explains that not every unpleasant interaction or isolated incident rises to the level of unlawful harassment.
Here is what the agency’s current guidance says in plain English.
What does the EEOC consider workplace harassment?
According to the EEOC, harassment is unwelcome conduct based on:
Race
Color
Religion
Sex
National origin
Age, beginning at age 40
Disability
Genetic information, including family medical history
The EEOC’s current harassment page also includes sexual orientation, transgender status, and pregnancy within its discussion of sex-based harassment (U.S. Equal Employment Opportunity Commission [EEOC], n.d.).
Harassment can also involve retaliation against someone for participating in a discrimination investigation, proceeding, or lawsuit, filing a discrimination charge, or opposing an employment practice they reasonably believe is discriminatory.
When can harassment become unlawful?
The EEOC says harassment becomes unlawful when either:
Enduring the offensive conduct becomes a condition of continued employment, or
The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
The agency also makes an important distinction: petty slights, annoyances, and isolated incidents generally do not rise to the level of illegality unless the incident is extremely serious (EEOC, n.d.).
When determining whether harassment is severe or pervasive enough to be unlawful, the EEOC says it looks at the entire record, including the nature of the conduct and the context in which the incidents occurred.
The determination is made on a case-by-case basis.
What are examples of conduct the EEOC identifies?
The EEOC lists examples of offensive conduct that may be relevant in a harassment situation, including:
Offensive jokes
Slurs
Epithets or name-calling
Physical assaults or threats
Intimidation
Ridicule or mockery
Insults or put-downs
Offensive objects or pictures
Interference with work performance
(EEOC, n.d.)
The presence of one of these behaviors does not automatically establish unlawful harassment. The EEOC evaluates the conduct and surrounding circumstances when determining whether the legal standard has been met.
Who can be involved in workplace harassment?
According to the EEOC, a harasser may be:
The victim’s supervisor
A supervisor in another area
An agent of the employer
A co-worker
A non-employee
A non-employee could include someone such as an independent contractor or customer.
The EEOC also says the person affected does not have to be the individual directly targeted by the harassment. Someone else affected by the offensive conduct may also be considered a victim.
Unlawful harassment can also occur without the person losing their job or experiencing an economic loss (EEOC, n.d.).
What does the EEOC say about preventing harassment?
The EEOC describes prevention as an important tool for addressing workplace harassment.
Its guidance encourages employers to take appropriate steps to prevent and correct unlawful harassment.
Examples identified by the EEOC include:
Clearly communicating that unwelcome harassing conduct will not be tolerated
Establishing an effective complaint or grievance process
Providing anti-harassment training to managers and employees
Taking immediate and appropriate action when an employee complains
The EEOC also encourages employers to create an environment where employees feel able to raise concerns and believe those concerns will be addressed (EEOC, n.d.).
What does the EEOC say about employer liability?
Employer liability depends on the circumstances.
The EEOC says an employer is automatically liable when harassment by a supervisor results in a negative employment action such as:
Termination
Failure to promote
Failure to hire
Loss of wages
When supervisor harassment results in a hostile work environment without that type of negative employment action, the EEOC describes circumstances under which an employer may avoid liability by showing that it reasonably tried to prevent and promptly correct the behavior and that the employee unreasonably failed to use available preventive or corrective opportunities.
The EEOC also says employers may be liable for harassment by non-supervisory employees or certain non-employees under their control when the employer knew or should have known about the harassment and failed to take prompt and appropriate corrective action (EEOC, n.d.).
What does the EEOC guidance show?
The EEOC’s guidance distinguishes between workplace conduct that is unpleasant or inappropriate and harassment that meets the legal standard under federal employment discrimination laws.
The agency considers factors including:
What the conduct involved
The circumstances in which it occurred
Whether it was severe or pervasive
Whether it resulted in a negative employment action
The EEOC says these determinations are made based on the facts and context of each case.
From Workplace Guidance to Employment Opportunity
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Frequently Asked Questions
Is every offensive comment at work illegal harassment?
No.
The EEOC says petty slights, annoyances, and isolated incidents generally do not rise to the level of illegality unless the incident is extremely serious.
Can someone other than a supervisor commit workplace harassment?
Yes.
The EEOC says a harasser may be a supervisor, co-worker, agent of the employer, or even a non-employee such as a customer or independent contractor.
Does someone have to be fired or lose pay for harassment to be unlawful?
No.
The EEOC states that unlawful harassment may occur without economic injury or discharge.
Does the EEOC automatically consider every harassment complaint unlawful?
No.
The EEOC says it considers the entire record, including the nature and context of the conduct, and determines whether harassment is severe or pervasive enough to be unlawful on a case-by-case basis.
Source Note:
At the time this article was prepared, the EEOC states on its harassment webpage that the information is being reviewed for compliance with the law and executive orders and will be revised.
This article summarizes the guidance currently published on that page.
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Sources & References
U.S. Equal Employment Opportunity Commission. (n.d.). Harassment. https://www.eeoc.gov/harassment
