From Hollywood to the boardroom to the break room, sexual harassment headlines have shined an uncomfortable but necessary spotlight on harassment over the past year and a half.

One emerging challenge for businesses without an onsite HR professional is determining what is and isn’t harassment, as well as what’s considered illegal.

On one hand, many rules are well-defined, and there’s no room for misinterpretation. But with heightened awareness comes heightened sensitivity, so you must navigate the gray areas carefully to fully protect your employees and your business.

Harassment: A Legal Definition

The Equal Employment Opportunity Commission clearly defines harassment:

  • Harassment is unwelcome conduct when directed at protected classes, such as race, color, religion, sex, national origin, age, disability or genetic information.
  • Harassment becomes unlawful when enduring the offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive.

Although this definition seems clear-cut, as is often the case in legal matters, the lines can become blurred. And it’s important to understand that any harassment whatsoever, whether it’s a single, severe instance or ongoing, may be illegal if it’s directed at one of the protected classes mentioned above.

Types of Workplace Harassment

Harassment is a form of intimidation, and offenders usually fall into these general categories:

  • Verbal Harassment
  • Physical Harassment
  • Sexual Harassment

Examples of harassment include but are not limited to:

  • Unwelcome comments
  • Offensive jokes
  • Threats
  • Insults or name-calling
  • Negative stereotyping
  • Unwelcome physical contact
  • Displaying derogatory pictures

The challenge is making yourself aware of potential pitfalls and how to navigate them should they arise within your business.

Sexual harassment gets most of the headlines, but lawsuits alleging harassment based on age, race, color, religion, national origin, gender, disability and other protected characteristics are filed every day. State and local laws often cover additional characteristics, such as political affiliation or familial status. Word to the wise: Take all types of harassment seriously.

Five Scenarios: Harassment or Not?

To better understand what “crossing the line” is, let’s look at some possible harassment situations.

Scenario #1: A new employee joins your team. He’s a bit older than the rest of the staff, with a salt-and-pepper beard. You introduce him at a staff meeting, and someone jokes, “Welcome to the team, Gramps!” Everyone gets a laugh. Is this illegal harassment?

If it’s a one-and-done situation, it’s an insensitive comment that deserves disciplinary action, at a minimum. However, if the employee is subjected to age-related comments on an ongoing basis, it could be considered illegal harassment since age is a protected characteristic.

Scenario #2: Several employees go to lunch and begin making fun of how a not-present employee dresses, which makes one of the group uncomfortable. She returns and tells her manager about the awkward experience. Is this illegal harassment?

Again, it’s insensitive and worthy of addressing with the individuals so they understand the potential for illegal harassment. Also, if the offensive criticism was severe or habitual, regardless of the presence of the victim, it could be considered illegal harassment if based on the employee’s protected characteristic, such as national origin or religion. Anyone offended may assert a harassment claim, even if they are not targeted by the inappropriate comments.

Scenario #3: An employee overhears a manager on the phone with a friend using sexually vulgar language while describing a fellow employee. The employee is repulsed by the language and shares his concerns with another manager. Is this illegal harassment?

This is another example of inappropriate and rude behavior that most definitely should be addressed even though it may not reach the threshold to be considered illegal at this point. However, if the rude behavior is or becomes severe or pervasive, then the situation could be illegal harassment.

Handling harassment allegations can be challenging, but a step-by-step process can ensure you cover all the bases. Follow these guidelines if you ever receive a complaint:

  • Listen intently and assure employees you take their concerns seriously.
  • Prepare a written report outlining the details of the harassment complaint.
  • Intervene to ensure the harassment stops.
  • Investigate the complaint fully and include an attorney, if necessary.
  • Act swiftly (EEOC urges employers to respond within 48 hours of receiving a complaint.

Scenario #4: When dropping off packages at the front desk, a package carrier tells your receptionist his joke of the day, which is either racially insensitive or sexually charged. Despite the receptionist showing obvious signs of discomfort, the behavior continues daily. Is this illegal harassment?

Harassment by non-employees, such as vendors and customers, is prohibited like any other form of workplace harassment. You should take necessary steps to protect the receptionist, even if it means reporting the offender to their superiors or selecting a different vendor. If it’s a one-time offense, however, it likely wouldn’t be considered an enduring or severe activity and, therefore, not illegal harassment.

Scenario #5: A female manager is known to fly off the handle and verbally reprimand her male direct reports in front of other employees, calling them “incompetent little boys” or “all-brawn, no-brained idiots.” Is this illegal harassment?

Based on the legal definition of harassment, the offense must be based on a legally protected class, such as age, race, sex or religion. In this case, it could be considered illegal harassment based on sex. Regardless, the behavior definitely warrants discipline.

Other common “is it or isn’t it?” situations may include water fountain conversations surrounding politics, sports teams, television shows or movies. Individual opinions often escalate into heated discussions, which could include offensive behavior or language. If protected class language is avoided, the conversations are simply inappropriate. Addressing and punishing undesirable behavior is necessary, but you’re most likely not dealing with illegal harassment.

Education and Awareness Help Prevent Harassment

Creating an anti-harassment policy is a must for all businesses, no matter the size. Develop and distribute a written no-harassment policy that clearly explains prohibited conduct. The policy should state the company will not tolerate harassment based on age, race, color, religion, national origin, disability or any other legally protected status.

It’s also prudent to conduct annual training for all new hires, employees and supervisors. The Harassment Training Smart App is an ideal resource to help small businesses inform their workforce about the various types of harassment. The cost-effective app allows employees to move through a series of training modules that heighten awareness and understanding.

Key Takeaways
  • Attention to harassment issues has increased over the past year and a half.
  • The EEOC has clear definitions surrounding harassment.
  • While sexual harassment is most common, there are other forms of harassment that you must recognize.
  • What seems like illegal harassment at first sight, may not be.
  • Anti-harassment policies and training are important to protect employees and your business.