As a paralegal based in Greenville, SC, I often receive calls from employees who believe that the unfair treatment they’ve experienced in the workplace justifies taking legal action. While their stories can be distressing, it’s important to clarify that not every hostile or abusive situation at work qualifies as unlawful harassment or creates an unlawful hostile work environment. In this blog, we’ll delve into the misconceptions surrounding workplace harassment, what actually constitutes it, what to look for, and how to address it.
Understanding Workplace Harassment
Title VII of the Civil Rights Act of 1964 prohibits harassment based on certain protected characteristics such as race, color, religion, sex, and national origin. The American with Disabilities Act (ADA) makes harassment based upon disability unlawful. The Age Discrimination in Employment Act (ADEA) prohibits harassment based upon age. The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits harassment based upon military service. If harassment is not motivated by one of these protected characteristics, then it is not unlawful (under federal law or South Carolina law).
In general, there are two types of unlawful harassment:
1. Quid Pro Quo: This is a Latin term for “this for that” and applies only to sexual harassment; Quid pro quo sexual harassment occurs when a supervisor, manager or officer of the company offers a tangible benefit or continued employment in exchange for sex.
Examples of quid pro quo sexual harassment are a supervisor promises an employee a promotion in exchange for sexual favors, threatens to fire an employee unless they engage in a sexual relationship, a manager offers preferable work assignments or shifts to an employee in return for a date or sexual encounter, or a supervisor suggests that an employee could receive a salary increase or bonus if they comply with sexual advances.
2. Hostile Environment: The harassment must be either severe enough to alter the conditions of employment or so pervasive that it creates an intimidating, hostile, or offensive work environment.
Examples of workplace harassment that can create a hostile environment include offensive jokes, slurs, name-calling, threats, physical assault, ridicule, interference with work performance, spreading rumors, and ignoring an employee’s presence. However, these examples apply only when the harassment is motivated by one of the protected criteria mentioned earlier.
Employer Liability
Employer liability can be tricky but in general unlawful harassment varies depending on whether the harasser is a supervisor or a non-supervisory employee. If a supervisor’s unlawful actions result in a negative employment outcome, such as termination or failure to promote or a hostile environment, the employer is liable. The same applies to non-supervisory employees or non-employees under the employer’s control, like independent contractors or customers, if the employer knew or should have known about the harassment but failed to take prompt corrective action.
What to Do if You’re a Victim
Prevention is the most effective way to combat workplace harassment. Many employers have policies in place to address harassment and a reporting mechanism. If your employer has such a policy, it’s essential to follow the procedure. Importantly, the law protects you from retaliation for opposing unlawful harassment. However, it is equally important to be able to prove you complained or opposed the harassment: So, do it in writing. Email is a great tool for making complaints.
Keep an eye out for our upcoming blog where we’ll deep dive into the topic of workplace retaliation. We’ll break down what it is, how to recognize it and what steps to take if you’re affected.
