Is That Illegal Harassment? What Should I Do?

March 8, 2018

There’s been a lot of media coverage about sexual harassment in the workplace, leaving many women – and men – wondering exactly what sort of behavior crosses that sometimes-invisible threshold and rises to the level of illegal harassment. You may have the feeling you’re being harassed at work, but you’re not sure whether you have an actual legal claim. This post is intended to help workers identify sexual harassment violations in the workplace, and take the first steps in addressing the problem.

It’s important to always bear in mind that it’s not always about sex: if you are harassed on the job because of your sex, race, color, religion, gender identity, sexual orientation, or national origin, you may have a legal claim.

First, it’s important to understanding the legal definition of harassment.

Sexual Harassment: If a supervisor makes unwelcome sexual advances to a job applicant or employee, and then uses his authority to take a job action, good or bad, against that person, that is unlawful sexual harassment. If a supervisor threatens – explicitly or implicitly – a harmful job action or offers a job benefit to get an employee to comply with sexual advances, that is also unlawful.

Hostile Workplace: If anyone in the workplace – not just supervisors – engages in unwanted touching or makes unwelcome or offensive comments or “jokes” that are sexual or linked to gender, race, or another protected characteristic, it is considered unlawful harassment if the behavior is so severe or ongoing that it creates an intimidating, hostile, or abusive work environment. A worker must be able to show that tolerating this behavior was a condition of staying in their role.

Specific examples of what can constitute harassment:

• In a case of religious harassment, a state court has found that it was harassing for an employer to place Christian-themed messages and Bible verses on paychecks given to employees.

• Repeated, and unwanted, preaching by coworkers on religious matters can potentially constitute harassment.

• Hanging a picture of a political leader or activist, or photograph of an ethic disturbance or conflict that reflects negatively upon people of that nation, can constitute national-origin harassment.

• Using racial epithets to describe a set of people can constitute racial harassment, even if the epithets are not directed at a particular individual.

Next, here are some steps you can take to address a problem in your workplace:

Let those inside and outside the company know what is going on: If your employer has an anti-harassment policy, follow its process for reporting harassment. In some cases, you risk undermining your claim if you don’t report and give your employer the opportunity to address the issue first. Keep copies of all communications with the harasser and your employer, as well as thorough notes on each incident.

At the same time, you may reach out to the EEOC or your state’s analog, or the following organizations for more information about your legal options: the National Women’s Law Center; Equal Rights Advocates. You may also with to contact a private attorney for confidential advice and counsel. A directory of employment lawyers specializing in representing employees – not employers – is available at the website for the National Employment Lawyers Association.

Litigation can be risky and there are no guarantees of victory. Even when an individual woman recovers a good settlement or jury verdict, she may not see the sort of structural, systemic change that prevents future problems instead of just compensating for past problems. But cases that are brought as class actions have greater potential for relief that can really change a workplace over time. While not all circumstances are appropriate for class action litigation, in cases that are, the relief is more than just monetary. If you are one of many experiencing harassment on the job, it’s worth talking with a lawyer about whether your case is suitable for litigation on a class action basis.

Remember that you have a right to report harassment, participate in a harassment investigation or lawsuit, or oppose harassment, and it is unlawful for your employer to retaliate against for doing so.

Christine E. Webber is a partner in the Civil Rights & Employment practice at Cohen Milstein Sellers & Toll PLLC, where she regularly represents victims of discrimination and other illegal employment practices in class and collective actions. Aniko R. Schwarcz is an attorney in the same practice, where she serves as Director of Civil Rights & Employment Case Development, investigating new cases and serving as the first point of contact for prospective clients and class members.