In the U.S., workers who are members of a protected class because of age, race, ethnicity, national origin, sex, disability, or religion have the legal right not to be harassed under a series of anti-discrimination laws. However, it is a sad reality that discrimination is still prevalent in the workplace. According to the Equal Employment Opportunity Commission (EOC), there were 84,254 incidents of discrimination reported to them in 2017 alone, not including reports filed to local Fair Employment Practices Agencies (FEPA). This page will discuss the issues associated with workplace harassment and discrimination including how to identify a problem, know your rights, and become a self-advocate by following steps to file a complaint.
Before we delve into the differences between harassment and discrimination, let’s take a look at the federal laws that give workers protections in the U.S. The Equal Employment Opportunity Commission (EEOC) is the federal agency that monitors the following anti-discrimination protections:
It’s illegal to discriminate against someone in the workplace based on the protected classes of race, color, religion, sex, or national origin.
Amended Title VII to include protections for women on the bases of pregnancy, childbirth, and related conditions.
Men and women must receive equal pay for equal work.
Prohibits discrimination against workers age 40 and over because of age.
Prohibits employer discrimination against workers with disabilities in private companies (more than 15 employees) and state and local governments.
Makes it illegal to discriminate against an employee with a disability who works in the federal government.
Prohibits workplace discrimination based on genetic information in tests or medical records belonging to the individual or their family.
Knowing the law is one thing, but understanding how it applies to you is another, starting with recognizing the differences between discrimination and harassment. Although the terms are used interchangeably, they are not the same thing.
Discrimination is when a member of a protected class receives unfair treatment based on being a member of that group. For instance, denying a woman a promotion just because she is a woman is illegal because gender is a protected class under the law.
Harassment is the pattern of conduct or behavior toward an employee that can result in a discrimination charge. Whether harassment takes the form of verbal, physical, sexual, or others—it is typically one of two types: quid pro quo or hostile environment, although these terms are most often applied to sexual harassment cases.
Quid pro quo: Giving something of value in exchange for receiving something valued, such as “If you respond to my sexual advances I will promote you.”
Hostile work environment: When morale and productivity suffer because the victim is a repeated target of intimidating, hostile, or offensive behavior like slurs and unwelcome touching.
Workers 40 years of age and older are protected from discrimination under the law. For example, it’s not okay to mention age in help wanted ads, put age limits on training programs, or force employees into retirement because they reach a certain age. Older employees must also have access to the same benefits as younger employees.
Treating an employee differently due to race is against the law. For instance, it is illegal to ask different questions during a job interview to someone of color than to a white applicant. Also, businesses cannot set policies that have a negative effect on an ethnic minority, such as requiring women to have straightened hair or not allowing dreadlocks.
Employers cannot hire, fire, or set terms of employment that conflict with a person’s religious or spiritual beliefs. As long as it doesn’t cause undue hardship, the employer must also provide reasonable accommodations such as providing flexible scheduling or allowing the employee to swap shifts. Additionally, dress codes can’t be so restrictive as to interfere with an employee’s religion.
It’s illegal to pay a male employee more than a female employee for doing the same job. Although not spelled out specifically, gender identity and sexual orientation are also protected from workplace discrimination under the interpretation of Title VII. For example, refusing to hire someone because they are gay, lesbian, or transgender is against the law. Eighteen states have separate LGBT anti-discrimination laws.
A woman cannot be fired or demoted for becoming pregnant. It’s also illegal to harass or fire a woman for pumping breast milk. Additionally, women cannot be penalized for taking time off after having a baby because it is illegal to restrict medical leave.
Employees with disabilities have a variety of protections including the right to receive reasonable protections when they are requested. For instance, the workplace environment must be accessible for everyone including those who use wheelchairs. Providing an interpreter for an employee who is deaf during the interview process is another example of an accommodation.
Harassment occurs when a victim’s supervisor, another supervisor, a coworker, or even a non-employee like a client or a customer demonstrates offensive conduct toward a member of one of the protected classes in the previous section, it’s considered harassment. However, according to the EEOC, for harassment to be considered illegal, enduring the behavior must “be a condition of employment” or “create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”
Sexual harassment is unwelcome sexual conduct, such as offensive comments, inappropriate touching, and sexual advances. Showing suggestive images or videos, sending suggestive emails and refusing to hire someone unless they engage in sexual acts are all examples of harassment. Although many people assume sexual harassment only happens to women, it can involve men, women and the people of same or different genders.
Belittling someone, whether name-calling, repeating slurs, or yelling insults is verbal harassment. However, it is only illegal when it occurs based on a protected characteristic like those discussed in the previous section. So, for example, verbal harassment can also be sexual harassment or racial harassment, depending on the target. An EEOC survey found 70 percent of respondents reported verbal harassment of a racial or ethnic nature but verbal harassment can occur against members of any of the protected classes.
Access to technology which makes it easy to spread rumors, share private images, and send harassing texts among coworkers, has contributed to creating a cyberbullying problem in the workplace. Cyberbullying behavior can humiliate victims and interfere with workplace productivity. There are currently no cyberbullying laws on the books, but some businesses have their own policies so check with your human resources department.
The Occupational Safety and Health Administration reports nearly two million incidents of workplace assault each year in the U.S., resulting in loss of morale and productivity, negative public relations, and even loss of life. Depending on the case, employees can receive workers compensation or pursue other litigation.
A 2003 study found 75 percent of employees who reported workplace harassment experienced retaliation, making it an important issue for human resources departments to handle. Victims are protected against harassment for filing a discrimination complaint, testifying or otherwise participating in an investigation, or pursuing a lawsuit under federal and sometimes state or local anti-discrimination laws. When retaliation occurs and can be proven, it can result in disciplinary action.
Harassment often leads to a lack of morale in the workplace. First, workplace bullying can take a mental and physical toll on the victim which then can impact their job performance. Below are some of the most common results of workplace harassment and bullying according to the Workplace Bullying Institute.
But it’s not just the victim who suffers at work. Workplace bullying is disruptive for everyone. Coworkers who witness the harassment may feel guilty for not saying something or worry about becoming victims themselves. In fact, a Canadian study found coworkers who witnessed workplace bullying were more likely to take antidepressants and tranquilizers. Other employees may feel frustrated because coworkers miss work to give statements for litigation, leaving extra tasks and responsibilities to them. It’s management’s responsibility to create a supportive atmosphere and recognize when to intervene.
According to a 2016 EEOC report, 87 percent to 94 percent of individuals do not file a formal complaint after experiencing discrimination or harassment. They fear blame, that nothing will be done, or that they will be ostracized. However, reporting workplace harassment or discrimination can be important for a couple of reasons. One, it proves the employer was aware of the problem and therefore responsible for handling it. Secondly, it may be the only way to stop the behavior. So, what should you do if you are a victim of workplace harassment or discrimination? Here are some suggestions:
Buy a pocket-sized notebook and keep track any time the offending behavior takes place. Note details like time and date, and a summary of the incident. Be as specific as possible. Should anything end up escalating through the legal system, this record will be invaluable evidence.
Chances are, one or more of your coworkers witnessed the behavior at some point—so think about who was there. Talk to them about what they saw and include it in your notebook. Also, ask if they are willing to be a witness.
If there are photos or other objects that can prove your case, keep them safe until you need them. Did you receive harassing emails or phone calls? Then keep email and call histories. The more proof you have, the easier it will be to make a case.
As soon as something happens, you need to create a plan because there are state and federal time limits to reporting harassment. Check to see how discrimination is handled by your company. Is there a workplace policy? Can you get a physical copy of a workplace handbook? If your company has a website, the grievance procedure should also be located there.
Harassment can be traumatic. Whether it is a friend or therapist, reaching out to someone you trust and talking about it can be essential for your mental health. They can also help you decide whether you want to file a complaint.
Is there a supervisor you feel comfortable approaching? If not, you may have a Human Resources representative or someone responsible for handling internal complaints. An EEOC counselor can also help you decide how to proceed as well as discuss the possibility of litigation and what it entails.
When you file a complaint with Human Resources, you have to follow the company’s specific reporting procedure. You may instead decide to work with the EEOC or a state Fair Employment Practices Agency (FEPA). You don’t need an attorney and have 180 calendar days after the date of the incident to file with the EEOC. If you instead file with a FEPA and federal laws apply, they will dual-file with the EEOC automatically. Be aware that the process for federal employees is slightly different. More information can be found here.
Because filing a charge is a serious decision with a range of possible ramifications, the EEOC won’t investigate unless you have a case. For this reason, you are required to interview with an EEOC staff member to review the details of your experience. You can submit an online inquiry and schedule an intake interview through the EEOC Public Portal. Inquiries are also accepted by mail by calling 800-669-4000. You will be asked for your name, phone number, and details about what you have experienced.
If too much time has passed, and you have less than 60 days before the filing deadline, don’t worry. Expedited directions to follow are posted on the portal. Also, if you’d rather meet with someone in person, you can find a local office by entering your zip code here.
During the interview, everything you say will be confidential. The representative will discuss your rights and responsibilities under the law, and you will learn about how the investigative process works.
After the interview, the EEOC will let you know whether your case qualified for further investigation. The EEOC makes the decision based on factors like whether you are within the reporting deadline and how the laws apply to your case. You can access your case on the portal.
Your employer will be notified about the charge once you file a complaint. (Don’t worry. If your case did not qualify for an investigation, your employer won’t be notified.) Remember, you cannot be terminated or demoted for filing with the EEOC.
If mediation is possible, you and your employer will work together toward a solution. Mediation can typically be wrapped up within three months.
If a settlement is not reached during mediation, an investigation will begin. Witnesses will be interviewed, and documents gathered to determine whether discrimination occurred. It can take up to 10 months to complete the process.
You and your employer will receive the results of the investigation. If the EEOC determined no discrimination took place, you might be permitted to file a lawsuit against your employer. The EEOC will send you a document that permits you to pursue litigation called Notice of Rights to Sue. You have 90 days from receiving the notice to file a lawsuit.
Nancy Gunter, the Chief Learning Officer for the YMCA of Greater Tulsa, has been involved with nonprofits for more than 25 years. She handles HR, Risk Management, and Staff Development and her passions lie in developing young staff into great leaders. Nancy is a Partner with Exceptional Leaders Lab and specializes in speaking on Generational Differences, Emotional Intelligence, and Why People Do the Things They Do. LinkedIn Profile
When the #MeToo Movement kicked into high gear in August 2017, stories of sexual harassment in the workplace flooded the media, bringing it to the forefront of the national discussion. A 2018 sexual harassment and assault study found 38 percent of women and 13 percent of men reported being sexually harassed at work. To help break down your rights when dealing with sexual harassment and find out more about how it impacts the workplace, we talked with Nancy Gunter, the Chief Learning Officer for the YMCA of Greater Tulsa.
A: If an employee (qualified as any reasonable person) feels that there are unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct in a sexual nature, then sexual harassment could be occurring. The victim does not have to be the person harassed but rather can be anyone affected by the offensive conduct. Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
A: Yes. Anyone could be the harasser. It could be the supervisor, a supervisor from another area, an agent of the employer, a vendor, a coworker, a non-employee, anyone who creates the hostile work environment for an employee.
Also, harassment can occur between anyone, male to female, female to male, male to male, female to female, etc. There is no “one way” that sexual harassment occurs.
A: It depends. Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
However, one act, if egregious enough, could be considered sexual harassment if the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
A: The first thing is to tell the harasser to stop. Make this clear in words and actions. If the harassment does not stop, report to your supervisor or to the HR department. If you do not hear anything from your supervisor or the HR Department and the harassment continues, then follow up, report that the harassment is continuing, and document what you are saying and when. If nothing changes and nothing is being done, then contact the EEOC.
A: The employer is responsible for actions taken by a supervisor that results in a negative employment action for an employee, such as termination, failure to promote or hire, and loss of wages.
If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1. It reasonably tried to prevent and promptly correct the harassing behavior, and 2. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Retaliation is one of the most frequently alleged bases of discrimination reported to the EEOC, however, anytime a harassment claim is made, the person it is made against should be told by the employer that they cannot retaliate against the person making a claim. Retaliation is always a possibility, but this is also looked at through the eyes of a reasonable person.
The following resources are available for anyone concerned about discrimination and harassment in the workplace.
Visit the American Association of University Women referral network to search for local legal aid organizations to help with discrimination claims. The page also has advice for interviewing attorneys and an Employee Rights and Information Center.
Find detailed descriptions of anti-discrimination laws and employee rights in the workplace.
The ERA is a nonprofit that promotes the advancement of gender equality in the workplace and provides resources for employees fighting sexual harassment, pregnancy discrimination, and sex discrimination.
A comprehensive resource with articles about the laws and regulations concerning harassment and discrimination and the procedure for filing a complaint.
A US Dept of Labor website that provides help in understanding and implementing workplace accommodations for employees with disabilities.
Bravely offers confidential sessions and assistance in handling workplace conflicts to employees who do not have a human resources department at work.
Originally an anonymous app for reporting cyberbullying, STOPit! now serves as a way to report inappropriate conduct at work. Visitors to the site can also find alternative solutions to fight incidents of cyberbullying.
This organization strives to provide support and protections for LGBTQ employees by fighting harassment and discrimination in the workplace.
THE SHRM website includes a Workplace Harassment Investigation Resources section with information about handling harassment at work.
Trained counselors offer support via text for those who need help 24/7. The service is free and shared information is kept confidential.
NELA’s Find-A-Lawyer search engine helps employees locate local attorneys who specialize in employment issues including discrimination and harassment.
The goal of the EEOC’s Youth@Work outreach campaign is to teach teens new to the workforce about employee right. Learn about real cases of discrimination and how to file a complaint at YouthRules!, a site designed just for teens.
Learn about your civil rights and get directions for filing a complaint if you are a member of a protected class who is a victim of workplace discrimination.
Links to information about issues related to workplace harassment such as workplace bullying, racial harassment, sexual harassment, and employer policies.