What Exactly Is “Unlawful Harassment”?

In today’s world, protecting yourself and your company from lawsuits is one of the most important things any organization can do. But to protect yourself, you first have to know what exactly constitutes harassment.

Unlawful harassment is a form of discrimination. Discrimination is treating people differently based upon their protected class status. There are two kinds of unlawful harassment: Quid pro quo and hostile work environment. Harassment is designed to hurt someone else because of a disparity in power.

Quid pro quo harassment is defined as:

• A request for sexual favors by a supervisor
• Subjectively unwelcome (the receiving party neither solicited nor encouraged the behavior)
• Coupled by a promise of benefit or a threat of retaliation
• If the retaliation is carried out, the organization has no defense and will lose any litigation

Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when

1. Submission to such conduct is explicitly or implicitly a term or condition of an individual’s employment,
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.

Hostile work environment harassment is defined as:

• Created by a supervisor, coworker, subordinate or outside third party
• Based upon protected class status (because of)
• Subjectively unwelcome (the receiving party neither solicited nor encouraged the behavior)
• Severe (dangerous) or pervasive (repeated)
• When viewed objectively, the behavior created an intimidating, offensive or hostile work environment or interfered with an individual’s job performance
• The organization will be liable if it fails to exercise reasonable care to prevent or stop harassment

Unlawful harassment is not merely unkind or disrespectful behavior — it must meet the elements outlined above.

Individual Liability
In addition to organizational liability under Title VII as amended by the Civil Rights Act of 1991, which creates increased damages when there is intentional behavior involved, under state law, courts have held supervisors and coworkers liable for:

• Malicious or tortious interference with employment or contract rights
• Intentional and unintentional infliction of emotional distress
• Defamation and have awarded actual, compensatory and punitive damages to the victims of workplace harassment.

Talking about harassment is by definition talking about things that are very personal. It’s understandable that you may be concerned about discussing personal things with a supervisor. But in order to protect yourself from harassment, and maybe protect others who might have experienced the same kind of treatment, you need to be responsible and step forward. Everyone is responsible for creating a cooperative and productive work environment. Report problems quickly!