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Federal

Authors: James Anelli and Elizabeth Clarke, LeClairRyan

Summary

  • Harassment is a form of discrimination through unwelcome conduct. Unlike discrimination, which is disparate treatment of an individual based on protected status, harassment occurs when an individual is subjected to unwelcome conduct that is motivated by the individual's membership in a protected class. See Governing Law.
  • Generally, unwelcome conduct in the workplace that is based upon, or motivated by, the victim's membership in a protected class is prohibited. See Governing Law.
  • Harassment can be based on sex, race, religion, national origin, disability, age or any other protected characteristic. See Harassment on Bases Other than Sex.
  • A harassment victim must prove that:
    1. He or she is a member of a statutorily protected class;
    2. He or she was subjected to unwelcome verbal or physical conduct related to his or her membership in that protected class;
    3. The unwelcome conduct complained of was based on his or her membership in that protected class; and
    4. The unwelcome conduct either:
      1. Affected a term or condition of his or her employment; and/or
      2. Had the purpose or effect of unreasonably interfering with his or her work performance; and/or
      3. Created a hostile work environment (A workplace that is sufficiently severe or pervasive to create a work environment that a reasonable person would consider intimidating, hostile or abusive.)

    See Establishing a Claim of Harassment.
  • Sexual harassment cases are evaluated under two types of categories: quid pro quo sexual harassment and hostile work environment sexual harassment. See Types of Harassment.
  • Quid pro quo sexual harassment occurs when a supervisor conditions a job or job benefit on the receipt of sexual favors, or demands a sexual favor in order for the employee to avoid an adverse employment action. See Quid Pro Quo Harassment.
  • Hostile work environment harassment is when a workplace is permeated with unwelcome intimidation, ridicule or insult based on a victim's membership in a protected class that is sufficiently severe to create an abusive work environment. See Hostile Work Environment Harassment.
  • Title VII's prohibition against employment discrimination does not establish a general civility code in the workplace. The law is not meant to regulate "same-sex horseplay or inter-sexual flirtation," and simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of the workplace. See Severe and Pervasive Work Environment.
  • A sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. See Reasonable Person Standard.
  • Once a victim has established a prima facie case of harassment, the employer's liability depends on: (1) who committed the harassment; (2) whether the harassment resulted in a tangible employment action; and (3) the employer's response to the harassment. See Basis for Employer Liability.
  • If there is no tangible employment action, then the employer may be able to avoid liability or limit damages by showing that it: (1) exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid such harm otherwise. See Basis for Employer Liability.
  • If the harassment by a supervisor results in a tangible employment action, then the presumption that the employer is liable is conclusive, and the employer cannot assert any affirmative defense. See Basis for Employer Liability.
  • Prevention is the best tool to eliminate harassment in the workplace, and every employer should have a harassment policy that is provided and communicated to all employees. See Managing and Preventing Harassment.

State Requirements

The following states have additional requirements for this topic under applicable state law.