By Joan S. Farrell, J.D., BLR Legal Editor
What is harassment? Is inappropriate conduct always harassment?
Harassment in the workplace is offensive conduct that violates laws prohibiting discrimination in employment. Federal laws prohibit workplace harassment that’s based on sex, race, color, religion, national origin, age, disability, or genetic information. Some state laws protect additional characteristics like sexual orientation and gender identity. Although legal standards for workplace harassment sometimes vary a bit under federal versus state law, a person’s conduct generally violates harassment laws when it:
- Is based on protected characteristic
- Under federal laws: sex, race, color, religion, national origin, age, disability, or genetic information
- Many states also cover: marital status, sexual orientation, gender identity, and pregnancy
- Is unwelcome
- Only conduct that is unwelcome is unlawful. Generally, if verbal or physical conduct, or a display of material is unsolicited or uninvited and was reasonably perceived as offensive when it occurred, the conduct may be considered unwelcome.
- Results in either a tangible employment action (firing, demotion) or is so severe or pervasive that it creates an unlawfully hostile work environment
- Conduct creates a hostile work environment if it is severe enough to alter the employee’s workplace experience – even if it only happens once. On the other hand, less offensive acts, if repeated frequently will also constitute sexual harassment.
- Generally, the more severe and offensive the conduct is, the less frequently it has to occur before it constitutes harassment.
Inappropriate conduct. The standards for inappropriate conduct in the workplace are set by an employer's policies and practices, not by laws or regulations. An employer’s policy can take the form of a “code of conduct” that requires employees to treat others with respect and dignity. Often, conduct standards are included in the employer’s policy against workplace harassment and discrimination. An employee’s offensive conduct may violate an employer’s workplace conduct standards without rising to the level of unlawful harassment.
In either case, employees should be encouraged to report inappropriate conduct or harassment when it occurs, whether it’s directed at them or someone else. The procedure for reporting complaints should be straightforward and easy for employees to understand and use. As an employer, you want to hear about inappropriate conduct sooner rather than later so you have a chance to intervene before things escalate.
How should employers differentiate between what is harassment and what isn't? Unlawful harassment is always inappropriate, but inappropriate conduct isn’t always unlawful. Inappropriate conduct may violate an employer’s professional conduct standards, but harassment violates the law. Harassment subjects an employer to liability where inappropriate conduct may not. This doesn’t mean an employer should allow inappropriate conduct just because it doesn’t rise to the level of unlawful harassment.
Employers should have a policy on professional conduct that explains what’s expected, what’s prohibited, and what the consequences are for violating the policy. That way, when inappropriate conduct occurs, an employer can impose discipline (up to and including termination of employment) for conduct in violation of the employer’s policy, and possibly avoid a claim of workplace discrimination.
Sexual Harassment Resources
Joan S. Farrell, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell has over 10 years’ combined experience in employment law and human resources management. As an in-house attorney for Citizens Communications Company, Ms. Farrell provided counseling on employment practices and represented the company in labor and employment matters. She later worked as a manager of Citizens’ Human Resources and Employment Law group. Ms. Farrell also represented management in employment law matters as an attorney with the national law firm of Brown Raysman Millstein Felder & Steiner LLP. Her experience includes representing management in administrative matters, discrimination and wrongful termination claims, as well as wage and hour disputes. Ms. Farrell received her law degree from Pace University School of Law.