What Constitutes Employer Harassment?

Employer harassment is behavior or activity in the workplace, usually targeting one or more specific employees, that makes them feel threatened, intimidated or in some other way uncomfortable. In the United States, such harassment is a form of illegal employment discrimination when it’s directed against employees because of their race, gender, sexual orientation, marital status, national origin, age or religious affiliation. It can take many forms, such as offensive jokes, unfair assignments or work hours, demotions, layoffs and dismissals. One of the most well known forms of employer harassment is sexual harassment, which itself can take many forms, such as unwanted physical contact, requests for sexual favors, or the offer to exchange preferential treatment in the workplace for sexual favors. Whether undertaken by rank-and-file workers, supervisors, or senior managers, all workplace harassment is the responsibility of the employer.

In the United States, employer harassment in one form or another has been a feature of employment probably since the continent’s colonization. It became illegal during the civil rights movement of the mid- to late-20th century, when employers were forced to drop their de facto bans against hiring certain minorities, or women, into certain job classifications. When those bans became illegal, employers and their management teams, and often the rank-and-file workers, took steps to make their lives in the workplace so miserable that they’d quit. One of the forms these steps took was the establishment of a hostile work environment. For example, a hostile work environment for women might be created by posting pornographic posters around the workplace; an environment hostile to blacks might be characterized by frequent use of derogatory racial epithets and the telling of offensive racial jokes.

Despite the fact that hostile work environments are often ad hoc creations of rank-and-file employees, the fact that they’re tolerated makes them the employer’s responsibility. At the first sign that a hostile work environment is being created, the law requires the employer to put a stop to it. The best way to do this is by preventing it in the first place through thorough training of the entire team — management and rank-and-file workers — and formulation of harassment policies that include a clear set if disciplinary measures, up to and including dismissal, for violators. Anti-harassment policies must also provide victims confidential and reliable ways of reporting violations, with penalties for those who retaliate against such whistle-blowers.

Some harassment takes the form of official action on the part of the employer — anything in writing, for instance, such as reprimands, unsubstantiated poor performance evaluations or undeserved discipline, as well as demotions, transfers or dismissals. Such official action often includes economic harm to the victim. There is legally no affirmative defense against such charges; an employer must disprove them, and may not justify them. Harassment that falls short of official action, though, may be affirmatively defended if the employer can show that a strong anti-harassment policy was in place and that whenever detected, harassment was immediately addressed.

Employees who feel they’re harassed must take action themselves to minimize the potential damage. In the first instance, the victim should tell the harasser that the objectionable activity is unwelcome. A woman who is touched inappropriately should tell the offender to stop; a minority who hears an offensive racial joke should let the joke-teller know he’s offended; and anyone offended by posters or banners should immediately alert the appropriate supervisor. Often, this is sufficient to stop the offensive behavior. Otherwise, the victim should keep a contemporaneous record of the offensive behavior and complain officially, using the employer’s policy. If the internal complaint process doesn’t satisfactorily stop the harassment, there are state and federal agencies, especially the Equal Employment Opportunity Commission (EEOC), charged with following up on complaints or employer harassment.

An employee who permits harassing behavior to continue unabated for months or years without taking any action against it has a much less compelling legal case than the employee who continually alerts management to the harassment. Likewise, employers need not wait for a complaint before taking action to stop harassment. The right to gainful employment free of harassment or intimidation has become such a mainstay of American employment policy that substantial penalties are visited upon those employers who fail in their duty to provide such a workplace.