What Is Harassment?

Harassment can be based on sexual desire, or on hostility to men or women because of their gender but unrelated to sexual desire, or on race, or on age, or on disability, or on retaliation. The law forbids them all. The legal standards for showing harassment or a hostile environment are not always easy to meet. This web site will help show the kinds of cases that can give rise to good claims, and what the targets of harassment need to do in order to have the best opportunity of curing their problems or, if no cure results from their complaints, protecting their rights. Harassment is unlawful whether it is motivated by sexual desire, hostility to women, hostility to people because of their race, color, religion, national origin, age, disability, or retaliation for engaging in a protected activity. The courts have applied the same basic standards to all these types of cases.

An employee must show that (a) the conduct in question is severe or pervasive enough to be covered by the law, and (b) that the conduct was not welcome, and (c) that a reasonable person in the employee’s situation would have found it objectionable, and (d) that the employer is responsible. See the discussion of “Employers’ Responsibility for Harassment.”

The courts have rejected many harassment claims because the conduct was not severe enough or not frequent enough to affect the terms and conditions of employment. However, sometimes a single incident - such as a physical assault - is so serious that it is enough for a good harassment claim.

The courts insist that a harassment complaint involve conduct that is more than mere rudeness or boorishness, or isolated remarks, or actions or statements that merely make some employees uncomfortable. They say that Title VII is not a code of civility.

The worse the conduct is, or the more often it is repeated, the likelier it is to survive a motion to dismiss. For example, a physical assault - such as grabbing an employee in a private area of her or his body - or threat of such an assault can be enough even if it is never repeated, as long as there is enough evidence to make the employer liable (such as a similar prior incident the employer knew about and refused to address, or refusing to address a complaint by the victim).

The harassing conduct must be unwelcome to the plaintiff, and must be bad enough that a reasonable person would find it objectionable.

It is critical to understand that the law does not require civil conduct by employers, and does not make occasional vulgarities unlawful. The law is not like an insurance policy: harassing actions by co-workers can take place without the employer’s knowledge, and the employer is not responsible unless some fault can be shown on the employer’s part.

The U.S. Equal Employment Opportunity Commission has issued guidelines on sexual harassment that also apply to all other types of harassment. The courts are not required to follow these guidelines, but often do if they find the guidelines persuasive. If you want to complain about harassment, it is a good idea to read these standards first.

Important Information From The Association of Trial Lawyers of America