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Workplace harassment is unwelcome and discriminatory conduct that happens on the job. It does not necessarily need to be sexual harassment to be unlawful.
Under federal law, harassment can come in 2 forms:
- A quid pro quo, or a
- hostile working environment.
Some state laws provide workers more protection from harassment in the workplace. Victims can sue their employers for compensation.
What is harassment in the workplace?
Workplace harassment is a type of employment discrimination. Harassment is a course of conduct that is unwelcome to the victim. It targets the victim because of his or her protected traits.
Harassing behavior can be:
- verbal, like using slurs, name-calling, demeaning epithets, or offensive jokes,
- nonverbal, like stalking,
- environmental, like displaying inappropriate photos or laughing at off-color jokes, and/or
- physical, like groping.
Whether that conduct is unwelcome or not depends on the victim’s perspective. However, it is only unlawful and discriminatory if a reasonable person would be offended or intimidated by it.
Anyone can be a harasser in the workplace. Potential harassers include:
- supervisors,
- coworkers,
- clients,
- customers, and
- venders.1
Title VII of the Civil Rights Act of 1964 is a federal law that recognizes numerous protected classes. Unwelcome conduct can amount to harassment and discrimination if it targets one of these traits. They are:
- race,
- religion,
- skin color,
- national origin,
- disability,
- age,
- sex,
- sexual orientation,
- gender,
- gender identity,
- pregnancy status,
- marital status, and
- genetic information, like family medical history.2
Other federal laws also provide protections to certain workers. These include the:
- Age Discrimination in Employment Act,
- Pregnancy Discrimination Act, and
- Americans with Disabilities Act.
Additionally, nearly all states have their own anti-discrimination laws for the workplace. While these are generally modeled after their federal counterparts, they may provide additional protections against harassment.
What are the 2 types of workplace harassment?
Workplace harassment falls into 2 categories, based on how the harassers behave:
- hostile working environment harassment, and
- “quid pro quo” harassment.
Harassing conduct that targets any protected trait can create a hostile working environment. Quid pro quos, however, are almost always based on sexual harassment.
Hostile work environment
Probably the most common form of harassment is a hostile work environment. Harassment can create a hostile working environment if the unwelcome conduct is severe or pervasive enough to make the workplace:
- intimidating,
- hostile, or
- offensive.3
A hostile work environment can be created by anyone, not just supervisors. It can also target any protected trait. Unlike with quid pro quo harassment, victims do not need to show that they suffered a tangible employment action. Victims do not necessarily need to suffer any economic loss or medical condition in order to have a claim.
Federal anti-discrimination law prohibits harassment that impacts the conditions of employment. Working in a hostile environment makes the toleration of the harassment a condition of employment.4
However, the workplace has to be both subjectively and objectively hostile for it to be unlawful harassment.
- To be subjectively hostile, the victim must have been offended or intimidated, personally.5
- To be objectively hostile, a reasonable person must find the working environment to be hostile, intimidating, or offensive.6
Whether unwelcome or offensive conduct was severe or pervasive enough to create a hostile working environment will depend on all of the relevant factors and circumstances.7
Quid pro quo
Quid pro quo harassment happens when a workplace benefit is made contingent on harassing conduct. That unwelcome conduct is usually of a sexual nature, and often includes a demand for a sexual favor. Quid pro quo harassment is nearly always done by a supervisor.
For example: Carl is Nancy’s boss. He tells her that the only way she will get promoted is if she sleeps with him.
The phrase “quid pro quo” is Latin. It means “this for that.”
Quid pro quos do not need to involve a workplace benefit. They can also involve inaction on the supervisor’s part, such as not penalizing an employee for poor work performance or misconduct.
For example: Nancy shows up late to work one morning. Her boss, Carl, says that he will not report her if she gives him a kiss.
If the worker refuses the quid pro quo – often by rejecting the sexual advances – it can still amount to harassment if the worker suffers a tangible employment action as a result.8
Does it have to be sexual harassment?
No, sexual harassment is not the only type of harassment. While many cases of workplace harassment are sexual harassment, non-sexual harassment exists as well.
Non-sexual harassment can target a worker based on his or her:
- race,
- skin color,
- national origin,
- ancestry,
- disability,
- immigration status, or
- age.
Victims should consider talking to a lawyer from a reputable law firm that deals with employment law and takes harassment cases.
What about cyberbullying?
Cyberbullying is unwelcome conduct that occurs online. It can affect the workplace. When it targets someone based on his or her protected trait, it can contribute to a hostile working environment.
In determining whether a working environment was hostile or not, all relevant factors are considered.9 This can include online cyberbullying.
What recourse does a harassed worker have?
Workers have recourse if they have been subjected to harassment in the workplace. They can file a lawsuit in state or federal court for workplace harassment and discrimination. These lawsuits can demand financial compensation for the victim’s losses. However, before filing a lawsuit, workers often have to exhaust their administrative remedies, first.
Many workplace harassment and discrimination claims are brought under federal law, such as Title VII. This law is enforced by the Equal Employment Opportunity Commission (EEOC). Before filing a harassment lawsuit under Title VII, aggrieved employees will generally have to:
- report the harassment to the employer or human resources department, according to the terms of the employer’s harassment policy,
- file an initial report, also called a charge, with the EEOC,
- go through mediation with the employer,
- wait as the EEOC conducts an investigation, and
- either:
- receive a “right to sue” letter from the EEOC, giving the worker permission to pursue his or her own case in court, or
- have their case pursued by the EEOC on the worker’s behalf, which can either lead to an out-of-court settlement or a lawsuit for harassment.
Generally, the charge has to be filed with the EEOC within 180 days of the harassing conduct. During this time, it is illegal for employers to retaliate against the worker for filing the complaint.
Each state has its own anti-discrimination laws for the workplace. They each have their own administrative process.
What is the law in California?
In California, the main state law against workplace harassment is the California Fair Employment and Housing Act (FEHA). This law mirrors the federal anti-discrimination law, Title VII, but has some important differences.
The FEHA covers a few additional protected traits, including:
- ancestry,
- both physical and mental disabilities,
- gender expression, and
- veteran or military status.10
While the FEHA recognizes both hostile working environment and quid pro quo harassment, the process for filing a harassment lawsuit is different. After informing their employer of the harassment, workers can file a complaint online with the California Civil Rights Department (CRD), rather than with the EEOC.
This CRD complaint has to be filed within 3 years of the harassment – a significantly longer time period than allowed under federal law.11
Once the CRD receives the complaint, it will investigate the allegations in the filing. If the incident would not fall under the anti-harassment laws that the CRD enforces, it will issue a “right to sue” letter.
Otherwise, the CRD will conduct an investigation. If the investigation finds reasonable cause to believe that there was harassment, the CRD will mediate the claims. If no resolution is reached, the agency may file a lawsuit in court on the worker’s behalf. If no reasonable cause is found, the CRD will often give the worker a “right to sue” letter.
Only when a “right to sue” letter is obtained can the worker file a lawsuit in California court for workplace harassment.12
Legal References:
- Vance v. Ball State University, 133 S.Ct. 2434 (2013).
- 42 USC 2000e-2.
- Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986).
- Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).
- Same.
- Oncale v. Sundowner Offshore Services, Inc., 118 S.Ct. 998 (1998).
- Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).
- Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).
- Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).
- California Government Code 12940 GC.
- California Government Code 12960 GC.
- California Government Code 12965 GC.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.