Harassment & Discrimination at Work:

Become Team
Become Team
October 5, 2021

Nancy 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.

A graduate of the University of California at Santa Barbara and the Santa Jennifer Koebele has more than 10 years of experience researching and writing about topics related to higher education and online learning. She often collaborates with college and career experts to produce in-depth, value-driven guidebooks for current and future college students and young professionals. Jennifer holds a master’s degree in education.

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.

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Federal Anti-Discrimination Laws

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:

What Qualifies as Harassment/Discrimination?

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.

Types of Discrimination

Age

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.

Race

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.

Religion

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.

Sex

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.

Pregnancy

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.

Mental or Physical Disabilities

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.

Types of Harassment

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

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.

Verbal Harassment

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.

Cyber Harassment

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.

Physical Harassment

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.

Retaliatory Harassment

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.

How Harassment Affects the Workplace

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.

What to Do If You’re Experiencing Workplace Harassment or Discrimination

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:

Keep a record.

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.

Find witnesses.

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.

Save evidence.

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.

Don’t wait.

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.

Ask for support.

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.

Review your options.

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.

How to Report Workplace Harassment or Discrimination

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.

Filing with the Equal Employment Opportunity Commission

Expert Advice on Dealing with Workplace Sexual Harassment
Q: How can an employee determine whether they are a victim of sexual harassment under the law? 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.
Q: Can anyone be a harasser? 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.
Q: Is it harassment if there is only one incident? 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.
Q: What should a victim of sexual harassment do first? 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.
Q: What is the employer’s responsibility after a complaint is made? Should the victim be concerned about retaliation? 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.

Support Resources

The following resources are available for anyone concerned about discrimination and harassment in the workplace.

Become Team
Become Team
Contributing Writer