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What Is Unlawful Harassment?

Defining unlawful harassment

Unlawful harassment is defined as unwelcome conduct directed at an individual based on a characteristic that is protected by antidiscrimination law. The behavior must negatively affect the victim's working conditions or terms of employment.

Not all unwelcome conduct is covered by the legal definition that's based on protected characteristics. But that doesn't mean it's necessarily acceptable in the workplace! Many employers have antiharassment policies that cover behavior that is rude and offensive, regardless of whether it's specifically prohibited by law.

Protected characteristics

The US Equal Employment Opportunity Commission, known as the EEOC, prohibits discriminatory practices based on protected characteristics or classes, that are covered within five federal laws:

  1. Title VII of the Civil Rights Act of 1964
  2. the Americans with Disabilities Act, also referred to as the ADA
  3. the Age Discrimination in Employment Act, or ADEA
  4. the Pregnancy Discrimination Act, also known as the PDA
  5. the Genetic Information Nondisclosure Act, or GINA

Title VII of the Civil Rights Act of 1964 protects employees from discrimination in the workplace that is based on any of these characteristics: race, color, national origin, religion, or sex. Harassment is considered a form of discrimination under Title VII.

In addition to the characteristics protected under Title VII, there are four other federally protected characteristics. Disability is covered by the ADA, age by the ADEA, pregnancy by the PDA, and genetic information by GINA.

In addition to the protections under federal laws, some state and local laws also protect an employee's sexual orientation, marital status, political affiliation, or status as a parent. You should familiarize yourself with your state and local laws so you're familiar with which categories are legally protected in your area. And make sure you know your own company's antiharassment policy, which may set higher standards.

Hostile environment

You've learned that harassment can be unlawful if based on a protected characteristic. But is any thoughtless comment to an employee about a protected characteristic unlawful harassment? Maybe not. For the conduct to be considered unlawful harassment, it must create a situation that unreasonably interferes with the victim's work performance. The behavior must be unwelcome, and also such that a "reasonable person" would regard it as either severe or pervasive. If these characteristics exist, the result is a "hostile environment."

Because people bring different experiences and viewpoints to the workplace, a harasser's conduct is evaluated against the "reasonable person" standard. The idea is to put aside any personal sensitivities or standards of the victim and consider the situation as objectively as possible.

If a person who is the target of inappropriate conduct makes it known that the conduct is unwelcome, and the offender continues the conduct despite the targeted person's objections, the conduct will be considered pervasive. A single unwelcome incident is unlikely to be interpreted as creating a hostile environment unless the incident is very severe – something a reasonable person would find "outrageous."

Rude or obnoxious colleagues can make anyone unhappy. Their behavior is never welcome. But unless it is aimed at a protected characteristic and is severe or pervasive, it's not against the law.

But remember that the law only specifies the minimum standard. Your company's antiharassment policy will likely set a higher standard than specifically required by the law.

Quid pro quo harassment

The Latin term quid pro quo means "this for that." In the context of harassment, it refers to situations where a manager or supervisor demands that an employee submit to sexual advances as a condition of the employee's job. Quid pro quo harassment only arises in cases where supervisors abuse their position of authority to coerce employees into accepting their sexual advances.

A critical aspect of quid pro quo harassment is that the supervisor or manager promises some type of employment benefit if his or her advances are accepted, or a punitive, employment-related consequence if the advances are rejected. Even if the sexual favors are granted and the employee receives the promised employment benefit, quid pro quo harassment has still occurred if the employee felt he or she was acting under duress. Punitive, employment-related consequences for the victim are known as tangible job detriment. Tangible job detriment might take the form of being involuntarily reassigned, getting passed over for promotion, receiving a significant reduction in benefits, being demoted, or even being terminated.

As a manager, you have important responsibilities when it comes to keeping your workplace free of harassment. You should be observant of employee behaviors so that you can recognize conduct that could be considered harassment, or that could lead to harassment. And you should proactively address inappropriate conduct, such as incivility among coworkers, before it escalates into something more serious.

Unlawful harassment is defined as conduct that is unwelcome, based on a protected characteristic, and a reasonable person would regard as severe or pervasive. The protected characteristics under federal law are race, color, national origin, sex, religion, pregnancy, disability, and genetic background.

Unwelcome behavior that is severe or pervasive is said to create a hostile work environment for the victim. Another kind of unlawful harassment is quid pro quo sexual harassment, where a supervisor or a person in a position of authority abuses that position of power to coerce employees into accepting sexual advances. If the employee does not comply, he or she faces punitive, work-related consequences, which are known as tangible job detriment.

Course: Workplace Harassment Prevention for Managers – Multi-State Edition
Topic: What Is Unlawful Harassment?