What is Harassment?

unlawful harassment at workThe Merriam-Webster dictionary defines harassment as, “to annoy or bother (someone) in a constant or repeated way” But with such vague definition, the word gets thrown around a lot.

For example, when a telemarketer calls in the middle of dinner, you might say they are harassing you. And we’ve all heard the media talk about online harassment – gamergate anyone?

But what about harassment at work? What does it mean, and at what point does workplace harassment become unlawful?

The Difference Between Harassment and Unlawful Harassment

You might be surprised to learn that not every instance of harassment at work qualifies as unlawful. Below are three different scenarios. Can you identify the one that is an example of unlawful harassment?

Three Scenarios of Harassment at Work

1. Every day as soon as you go on break, your co-worker needs your help with something, and when you don’t help him, he tells your boss and tries to make you look bad.

2. You were late getting a report for a client to your boss. The client is angry and so is your boss. This is the first time it’s ever happened, but now you’re in trouble. She calls you in her office and raises her voice while telling you how you’ve disappointed her and lost the company money.

3. Every week, your 22-year-old co-worker sends an email to the whole office with a joke about people that are over 50. The latest one was about how all baby boomers need hearing aids.

Only the third scenario counts as unlawful harassment. Did you get it right?

Unlike the Merriam-Webster, the United States Equal Employment Opportunity Commission (EEOC) has a very specific definition of unlawful harassment:

“Harassment is unwelcome conduct that is based a protected class. Protected classes include: race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.

And becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”

So while you might consider the first two examples harassment, they don’t fit the EEOC definition.

Why Aren’t the Others Considered Harassment?

First, the harassment needs to include a protected class. In the first scenario, the offensive behavior was based on personal dislike (not helping when requested). But, in the third scenario, the harassment was referencing people over 50, which is a protected class.

Next, the harassment must occur frequently enough that it becomes hostile or abusive. In the second scenario, the offensive behavior (yelling) only happened the one time. While in the third scenario, the emails were sent on a weekly basis.

How Could They Become Unlawful Harassment?

At this point neither the first nor the second scenario are unlawful harassment. But if we add more details, they could become unlawful.

For first scenario, if every time you didn’t help, the co-worker complained to the boss and stated that the reason you weren’t helping wasn’t because you were on break, but was because of a stereotype saying people of your national origin are “lazy” and “rude,” that would be unlawful harassment.

And even if you didn’t know what the co-worker was saying and your boss didn’t have the same national origin, it would still be harassment based on a protected class.

For second scenario, if while she is yelling, your boss says that men only think about one thing and they can’t ever do as good a job as women. Then, she proceeds to say that she won’t fire you if you do her a sexual favor.

That would be unlawful harassment because sex is a protected class and a sexual favor is now a condition of employment.

Do Your Employees Know the Difference?

As the U.S. Department of Labor (DOL) states, harassment at work can be difficult for people to recognize due to the many different facets of each particular situation. Determining whether or not the behavior crossed the line from ordinary workplace conflicts like occasional uses of offensive language or a misplaced joke, to unlawful harassment is a complex process.

If your employees aren’t sure how to tell the different types of harassment apart, it’s time for workplace harassment training!