What Is Unlawful Harassment?

April 13, 2006

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Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of that person's (or that person's relatives', friends', or associates') race, skin color, religion, gender, national origin, age, or disability, and that:

has the purpose or effect of creating an intimidating, hostile, or offensive work environment
has the purpose or effect of unreasonably interfering with the individual's work performance
otherwise adversely affects the individual's employment opportunities

Harassing conduct includes:

epithets; slurs; negative stereotyping; or threatening, intimidating, or hostile acts that relate to race, color, religion, gender, national origin, age, or disability (including jokes or pranks that are hostile or demeaning with regard to race, color, religion, gender, national origin, age, or disability)
written or graphic material that denigrates or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age, or disability and that is displayed on walls, bulletin boards, or other locations on your premises or circulated in the workplace

What would bother a reasonable person? If you have a situation where you are trying to determine if some conduct that has taken place is actually harassing conduct, the way to determine it is to use the "reasonable person" standard. If a reasonable person in the same or similar circumstances would find the conduct intimidating, hostile, or abusive, then it's probably harassment.

The reasonable person standard includes consideration of the perspective of persons of the same race, color, religion, gender, national origin, age, or disability as the harassment victim. For example, if a female employee complains of harassment, make sure in applying this test that you take the perspective of a woman, not a man. If, in the perspective of another woman, you would find this conduct harassing, it probably is.

Although harassing conduct must be objectively viewed as creating a hostile work environment to be unlawful, the subjective perception of the particular harassed employee is still significant. If the employee does not perceive the work environment to be hostile because of that conduct, the conduct is not unlawful harassment.

If you have five male employees and one female employee together telling "blonde jokes," and none of the employees finds them offensive, hostile, or abusive, the conduct is not harassment. It might not be a bad idea, however, to caution the employees about the conduct's possibly being construed as harassment.

To gain a full understanding of harassment, you have to understand the subtle distinctions in what constitutes sexual harassment and the different types of sexual harassment that exist.