Harassment in the workplace is a form of discrimination and illegal under federal, state, and some local laws. While employers are required to take steps to prevent and respond to complaints of harassment, employees who have experienced harassment often find themselves struggling to enforce their rights. If you feel you have been harassed at work, it is important to understand what constitutes harassment and your options for seeking redress.
The first question is whether the conduct you are experiencing is “harassment” as defined by applicable discrimination laws. Unlawful harassment is unwelcome conduct that is based on the employee’s race, sex, or other protected classification where either you were required to endure the discriminatory conduct to keep your job or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
While harassment may involve overt acts, often the conduct involves offensive statements or behaviors that create a hostile work environment. This can include slurs, offensive “jokes,” abusive or threatening comments, displays of offensive symbols or pictures, and inappropriate physical contact. Courts look at various factors in determining whether the conduct was sufficiently “severe” including the frequency, severity, physical threat level, humiliation, unreasonable interference with work performance, and effect on an employee’s psychological well-being. Conduct is considered pervasive when it is continuous enough to be a lasting feature of the workplace.
Because of these requirements, if you are experiencing petty slights, annoyances, and isolated incidents, generally, it will not be enough to prove a hostile work environment. However, you should document and report each incident to put the company on notice of the behavior and give them the opportunity to course correct.
A harasser can be another employee, a supervisor, a customer, independent contractor, or vendor. However, whether your employer is liable depends on the identity of the harasser and the knowledge of the employer. Employers are generally liable if a supervisor is the harasser. However, they have an affirmative defense if they can show they acted reasonably to prevent and correct the harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. If the harasser was not a supervisor, an employer may be liable if it knew or should have known of the misconduct.
As noted above, you should always document any incidents, including keeping emails in an off-work email account, taking photographs, and writing down notes as close in time to the events as possible. Also notify your employer making sure to comply with their complaint policies and procedures, which may be in your employee handbook.
If filing a complaint with your employer does not resolve the problem, you can file a complaint with a federal, state or local government agency as required under the law. The agency will investigate the claim and either dismiss it or request that you and your employer work together to settle or mediate the dispute. If the agency does not resolve the claim, it will provide you with a Notice of the Right to Sue letter. This allows you to sue your employer in federal court. Under federal law, you cannot file a lawsuit until you have first filed with the Equal Employment Opportunity Commission. However, under New York state law, you may file with the New York State Division of Human Rights or go directly to court. Note that there is a statute of limitations on filing a complaint with an agency as well as suing in court.
Harassment can be difficult to prove. An experienced attorney can help you determine whether the conduct you experienced is likely to meet the burden of proof and advise you regarding the best path to take in enforcing your rights and presenting a strong case to agencies and in court.
If you believe you have been the victim of harassment, consult an attorney about protecting your rights.