Is it Harassment or Just Questionable Behavior in the Workplace?

Guidelines for determining whether employee words and actions constitute harassment

Posted by Dawn Lomer in Employment Law, Harassment, Human Resources on August 7th, 2013

Every workplace has disputes. You can’t expect everyone to get along perfectly all the time, especially when employees spend 40 hours a week together. But some disputes are more serious than others, and when a dispute involves accusations of harassment, it’s in an employer’s best interest to investigate the allegations immediately and thoroughly.

Taking allegations seriously is important for employee safety and for staff morale. But in addition to those, the consequences of inaction can be damaging and expensive if a lawsuit ensues.

What constitutes harassment to one person may be considered an off-color-but-not-overly-offensive joke to another.
Unfortunately, in cases of alleged harassment, the lines aren’t always clear. What constitutes harassment to one person may be considered an off-color-but-not-overly-offensive joke to another. So employers may have a hard time making the decision to move forward with a workplace investigation when it’s not clear that harassment actually took place.

Protected Classes

One thing that is clear is that there are protected classes and if harassing behavior is targeting someone from one of these classes, the consequences can be harsh.

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They are:

  • Gender
  • Age
  • Race or color
  • Religion or creed
  • Physical or mental disability
  • Genetic information
  • National origin/ancestry
  • Pregnancy
  • Civil union/domestic partners
  • Citizenship
  • Veteran’s status/military status
  • Protected complaints/activity
  • Protected leave

Several other protected categories apply in certain states, including:

  • Family status
  • Gender Identity
  • Marital status
  • Sexual orientation

So if negative behavior is targeting someone from one of these protected classes, a thorough investigation is warranted.

Jokes

Racial, ethnic, or religious jokes or ones that make fun of, belittle or stereotype any other protected group, constitute harassment and should be investigated thoroughly.

Jokes that are sexual or suggestive, especially if they are unwelcome or offensive, are likely to fall under the category of harassment.

Making fun of a person’s accent, disability, religious affiliation or ethnic attire is grounds for a harassment investigation.

Using nicknames that relate to a protected group, such as calling a 55-year-old worker “gramps”, would fall under the category of harassment.

Flirting and Sexual Harassment

There’s a fine line between flirting and harassing behavior. It often has to do with whether the behavior is welcomed by the recipient. There’s a fine line here because sometimes flirtatious behavior is welcome at the beginning but progresses into more egregious behavior that is no longer welcome. Then it’s harassment.

Asking for sex and other sexual advances or propositions, even if there is no demand or threat attached and even if there is no expectation of a favorable response, is harassment.

Asking repeatedly for dates can be harassment, especially when it involves a supervisor-subordinate relationship.

Sexually explicit or suggestive conversations, comments or questions, when they are unwelcome, constitute sexual harassment, as do comments about a person’s appearance when they are suggestive or too frequent.

Unwelcome or inappropriate touching is harassment, especially if it is frequent, pervasive or threatening.

Symbols, Paraphernalia and Graffiti

It’s harassment when an employee introduces obscene, sexual, or suggestive materials, cartoons or photos into the workplace, which offend or belittle someone from a protected class. This can include pin-up calendars, posters or photos of a sexual nature.

Graffiti that is racist, sexist or offensive is harassment, as are drawings and hate symbols such as swastikas and any type of derogatory or unwelcoming messages that target a protected class.

Investigating Harassment

Some people argue that today’s workers are overly sensitive and are offended by minor incidents that really aren’t harassment. But if those workers are in a protected class, they have legal recourse, so it’s best to take all complaints of harassment seriously, investigate them and act promptly and decisively on the ones that are deemed to be legitimate.

 


Dawn Lomer
Dawn Lomer

Managing Editor

Dawn Lomer is the managing editor at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.