CHAPTER 2 What Is Harassment?
Which Laws Apply to Your Company?
What Is Harassment?
Tangible Employment Action
Hostile Work Environment
Avoiding Liability
Who Is a Harasser?
Supervisor Harassment
Coworker Harassment
Harassment by Nonemployees
Who Can Be Harassed?
What Is Not Harassment?
Consensual Relationships
Conduct That Is Not Related to Work
Like the word "discrimination," some people use the term "harassment" loosely, often to describe anything they perceive as unfair or overly critical, from a manager's insistence that all employees arrive at 9 a.m. precisely to a company rule that prohibits employees from using the company postage meter for personal packages. Whether or not you consider rules like these to be sensible, they don't qualify as harassment.
Illegal harassment is a form of discrimination, and it occurs only when an employee is mistreated because the employee is a member of a protected class. Although sexual harassment is probably the most widely publicized form, employees might also be harassed on the basis of other characteristics, such as race or disability.
This chapter explains what constitutes illegal harassment, so you can recognize real problems when they come up and respond appropriately to employee concerns and complaints. It covers:
• which laws apply to your company
• how to identify illegal harassment
• who can be a harasser or a victim of harassment, and
• what doesn't qualify as illegal harassment.
Which Laws Apply to Your Company?
Because harassment is a form of discrimination, the same laws that prohibit discrimination—including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Genetic Information Nondiscrimination Act (GINA) also prohibit harassment. (For more information on each of these laws, see Chapter 1.)
Most states also have laws that prohibit employment discrimination, including harassment. Some of these statutes expressly prohibit sexual harassment, separate from discrimination, and a few explicitly prohibit harassment and discrimination based on other protected characteristics, such as obesity.
If your company is subject to both state and federal law (as many are), it must follow both, which can be tricky because state and federal laws aren't always exactly alike. Here are some of the most significant ways state laws often differ from federal law:
• Size of covered employer. As explained in Chapter 1, federal discrimination laws apply to employers with several employees—15 under Title VII and the ADEA, and 20 under the ADA. But state laws might prohibit discrimination—and especially harassment—by smaller employers. For example, in California, even the smallest employers—those with only one employee—are subject to the state's harassment laws.
• Protected classes. Many states extend protections against discrimination and harassment to more protected categories than federal law. For example, state laws might prohibit discrimination or harassment based on marital status, medical marijuana user certification, lawful off-duty activity, domestic violence, or stalking victimization. See Appendix A to find out what characteristics your state protects.
• Amount of recovery. Title VII limits how much an employee can collect in certain types of damages after winning a lawsuit. While no limit applies to how much the employee can collect in lost wages, a collective limit does apply to the employee's award for compensatory damages (out-of-pocket costs, such as medical bills, and compensation for emotional harm caused by the harassment or discrimination—sometimes called "pain and suffering") and punitive damages (a sum awarded to punish the employer). The limit varies depending on the size of the employer, but ranges from $50,000 to $300,000. Many state laws prohibiting discrimination and harassment do not have similar caps on damages.
• Training requirements. Some states require employers to provide antiharassment training, and more states are considering this type of requirement. As a practical matter, for reasons explained in "Avoiding Liability," later in this chapter, many employers provide harassment training to their managers and employees, even if training isn't legally required in their state.
• Who is a "supervisor." Federal law and some state laws hold employers liable for harassment by supervisors, high-level managerial employees, or officers regardless of whether the employer knew about the harassment. However, the definition of supervisor differs from state to state. Some states include anyone who has the authority to transfer, suspend, promote, demote, assign duties, impose discipline, or recommend such actions to the decision maker. As a result of this difference, your company might be legally liable for an employee's actions under state law, but not under federal law.
• Individual employee liability. Under some states' laws (but not federal law), individual employees who engage in harassment might be personally liable for that harassment. So the employee can be sued, and the employee's personal assets will be at stake in the lawsuit.
• Protection for nonemployees. Many states extend protection against harassment beyond employees and applicants to other individuals, such as independent contractors.
Your company must follow every law that applies to it. In general, you must follow the rule that is more favorable to the employee. If an employee sues the company, the employee may bring claims under both state and federal law. For example, if an employee in Colorado claims she was sexually harassed, she may be able to file claims under both federal and Colorado law.
SEE AN EXPERT
If your company has employees in more than one state, get some help to figure out your obligations. As noted above, employees are entitled not only to federal protections, but also to the protection of the laws in the state, city, and county in which they work. You should consult a local attorney with experience in discrimination and harassment to make sure you comply with all applicable requirements.
RESOURCE
Looking for a lawyer? Asking for a referral to an attorney from someone you trust can be a good way to find legal help. Also, two sites that are part of the Nolo family, Lawyers.com and Avvo.com, provide excellent and free lawyer directories. These directories allow you to search by location and area of law, and list detailed information about and reviews of lawyers.
Whether you're just starting your lawyer search or researching particular attorneys, visit www.lawyers.com/find-a-lawyer and www.avvo.com/find-a-lawyer.
Common Questions
Q: My company employs people in several states. I think we should have one company-wide harassment policy. Is this a good idea and, if so, what is the best way to go about it?
A: Even though federal law sets out the mandatory minimum level of protection against harassment for employees anywhere in the country, state laws are often more protective. For example, your company might do business in several places, only one of which prohibits discrimination based on personal appearance, like the District of Columbia.
In this situation, you have a couple of options. Some companies voluntarily commit to protecting employees from discrimination even if they aren't legally required to do so. For example, a company in the personal care products market might want to adopt a policy that prohibits discrimination based on personal appearance, even in states where this isn't a protected category.
This could help your company attract and retain employees, market itself to its customers, and generally build a positive brand. If you do adopt a policy that isn't legally required, however, remember that you'll have to follow it. A court could very well find that your commitment in a handbook is an enforceable contract, giving employees the right to sue if they face discrimination based on personal appearance, even in states whose laws don't recognize personal appearance as a protected category.
If you don't want to commit your company to anything beyond what the law requires, the best way to structure your policy is to make it clear that your company prohibits harassment based on the categories protected by federal law. Then, identify which states or cities protect additional categories. For example, after listing the federally protected categories, your policy could state, "Employees in the District of Columbia are also protected from discrimination and harassment based on personal appearance."
What Is Harassment?
"Harassment" is unwelcome conduct that is a condition of continued employment or that creates an intimidating, hostile, or offensive work environment. But the conduct is illegal only if it is based on an employee's protected status—that is, on one of the characteristics that federal or state law protects. So not all harassing behavior breaks the law. It isn't illegal harassment to berate and belittle all your employees just because you're a mean-spirited person and don't like anyone, for example.
CAUTION
Just because conduct doesn't meet the legal definition of harassment doesn't mean it's appropriate workplace behavior. If an employee is being rude to coworkers or a manager belittles every employee on the team, you'll want to put a stop to it. Whether or not this behavior constitutes harassment, it's unprofessional and inappropriate, and should result in discipline. And, such behavior might violate state anti-bullying laws, which the majority of U.S. states have on the books.
Any conduct that meets the definition above is illegal harassment. However, courts have divided harassment into two categories, for which the employer has different levels of legal responsibility:
• Supervisor harassment that results in a "tangible employment action."...
When an employee suffers a tangible employment action at the hands of a supervisor—an actual adverse
