Workplace Discrimination and Harassment: Legal Compliance

Title VII of the Civil Rights Act of 1964 is legislation that makes certain types of employment discrimination in the United States illegal. Although Title VII does not expressly prohibit harassment, the U.S. Supreme Court has interpreted the Act as prohibiting sexual and certain other forms of harassment, and has established legal standards to determine when an employer may be liable for employment discrimination, including discrimination in the form of harassment.

Additional federal legislation has extended Title VII, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Pregnancy Discrimination Act, and the Genetic Information Nondiscrimination Act, all of which make specific kinds of workplace discrimination, and harassment based on that discrimination, illegal.

The U.S. Equal Employment Opportunity Commission, or EEOC, implements and enforces the nation’s employment laws.

Because discrimination and harassment in the workplace tends to be based on perceived differences between people, the laws are directed at the protection of particular groups and characteristics that are often subject to discrimination. Federal legislation prohibits discrimination and harassment based on

• race,
• color,
• religion,
• sex (including pregnancy, sexual orientation, and gender identity, which includes transgender status),
• national origin (including citizenship status and accent),
• age (for employees who are 40 or older),
• disability (physical or mental), or
• genetic information.

State and local laws and organization policy often go even further, for example, protecting employees from discrimination and harassment based on a range of characteristics, from military or marital status to ethnic hairstyles.

Illegal workplace employment harassment is defined as Hostile Environment harassment, Quid Pro Quo harassment, or both.

Hostile Environment harassment is a severe and pervasive pattern of behavior that bullies, intimidates, embarrasses, coerces, or insults others. Examples of Hostile Environment harassment are:

• Insults or name-calling.
• Violence or threats of violence.
• Making threatening, rude, or dismissive gestures.
• Physically intimidating someone by standing in the way or blocking access to equipment, work space, or common areas.
• Posting harassing content and cyberbullying on social media sites.
• Sending offensive texts, emails, or images.
• Rumor-mongering, gossiping, or otherwise harming a coworker’s reputation.
• Excluding someone from work-related activities or otherwise isolating them.
• Jokes or put-downs because of someone’s gender, ethnicity, disability, age, or other personal characteristic.
• Inappropriate touching such as unwelcome hugs or back rubs.

The courts use the so-called Reasonable Person Standard to determine whether bad behavior rises to the level of illegal harassment, by asking whether a “reasonable person” would find the behavior severe or pervasive enough to create a hostile environment.

Although, generally speaking, this type of harassment must be ongoing to be illegal, one extreme or especially egregious incident such as unwanted intimate touching or physical assault may also qualify as illegal Hostile Environment harassment.

Quid pro quo is Latin for “this for that,” and so illegal Quid Pro Quo harassment involves an exchange, or a trade. Sexual harassment, a pattern of unwanted sexual advances, comments, images, or sexual assault, especially by a manager or supervisor, is often categorized as Quid Pro Quo harassment.

For instance, a supervisor might offer a raise or promotion in exchange for sex. Whether or not the raise or promotion was actually given or denied doesn’t matter, just the offer or threat of an employment action based on sex is against the law. Quid Pro Quo harassment only has to happen once to be illegal.

It is also considered to be Quid Pro Quo harassment if a supervisor makes being harassed a condition of employment—for example, when a warehouse worker is told by her supervisor to just ignore the sexual teasing from her coworkers because “Boys will be boys.”

And a quid pro quo exchange doesn’t have to be explicitly stated to be against the law. For example, a manager could be guilty of quid pro quo sexual harassment if he started giving less desirable work assignments to an employee after she declined to date him, even if he hadn’t stated up front that he would do so.

Quid Pro Quo harassment also doesn’t have to be sexual in nature. If, for example, attendance at an employer’s church is a condition of employment, that’s illegal “this for that” harassment too.

Managers and supervisors can take what’s known as Tangible Employment Action, meaning that they have the authority to hire, fire, demote, promote, reassign, or otherwise significantly affect an employee’s career.

It is for this reason that when a manager or supervisor is guilty of sexual harassment it is often of the quid pro quo variety, and especially egregious. Any form of harassment that involves Tangible Employment Action puts the organization as well as the harasser at great risk for legal liability and is a blatant abuse of authority.

Organizations and companies are subject to legal liability, known as Vicarious Employment Action Liability, when one of their supervisors engages in harassing behavior.

Popular ATS training programs that address legal compliance for managers and supervisory personnel include:

• ADA in a Nutshell: The “TAKEAWAY” for Managers
• FMLA in a Nutshell: The “TAKEAWAY” for Managers
• Sexual Harassment: The “TAKEAWAY” for Managers
• Sexual Harassment: The “TAKEAWAY” for Managers, California Version
• Discipline, Documentation, & Termination: The “TAKEAWAY” for Managers
• Diversity, Respect, & Legal Compliance: The “TAKEAWAY” for Managers
• “Can I Ask That?” Legal Interviewing: The “TAKEAWAY” for Managers

Retaliation, that is punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment, is strictly illegal. Employees have the right to file or be a witness in a harassment complaint, intervene to protect someone else from harassment, talk to a supervisor about harassment, refuse to participate in discrimination, request accommodation for a disability or religious practice, and ask supervisors or coworkers for salary information to uncover potentially discriminatory wages. Asserting these rights is called “protected activity” because it is protected by law.

Employees who participate in a complaint process are protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate non-discrimination laws, even if he or she did not use legal terminology to describe it.

In other words, it is illegal retaliation if in response to an employee’s participation in a harassment complaint an employer:

• reprimands the employee or gives a performance evaluation that is lower than it should be;
• transfers the employee to a less desirable position;
• engages in verbal or physical abuse;
• threatens to make, or actually makes reports to authorities (such as reporting immigration status or contacting the police);
• increases scrutiny;
• spreads false rumors;
• treats the employee’s family member negatively (for example, cancels a contract with the person’s spouse); or
• makes the person’s work more difficult (for example, purposefully changing his or her work schedule to conflict with family responsibilities)

But employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences, as long as the employer does not do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.