Individual states and municipalities may have
laws creating additional protected classes,
often including sexual orientation, gender
identity, military status, marital status, and
Unwelcome conduct can be physical,
verbal, or visual. Improper physical conduct
can include hugging, massages, or other physical contact with sexual overtones, such as a
hand on the knee or the small of the back.
Improper verbal conduct may include slurs,
jokes, gossip, sexually suggestive compliments or comments, or romantic advances.
Unwelcome visual conduct often takes the
form of an inappropriate forwarded email or
displaying inappropriate photographs.
However, not all improper conduct is
actionable. Unwelcome conduct becomes
unlawful harassment when: (1) accepting it
becomes a condition of continued employment; or ( 2) the conduct is so severe or
pervasive that it creates a work environment
that a reasonable person would consider
intimidating, hostile, or abusive.1 The first type
of illegal harassment is commonly referred
to as quid pro quo (meaning “this for that”)
and typically involves the trade of a workplace benefit for a sexual benefit. The second
type, hostile work environment, is the more
common form of workplace harassment.
A hostile work environment can be created from a single, serious incident or several
occurrences considered together. A single
serious incident, such as the use of a racial
slur or a sexual assault, may be the basis for a
harassment claim, but often these claims arise
after repeated instances of unwanted behavior. Each incident, standing alone, may be
insufficient to support a claim of harassment;
collectively they represent a pervasive pattern
of conduct that is unlawful.
Additionally, the duty to provide employees with a harassment-free workplace requires
more than just ensuring proper interactions
between managers and their direct reports.
Claims of harassment can (and often do) arise
out of interactions between peers and can even
be based on the conduct of non-employees
in some circumstances. For example, if an
employer learns that an employee of a vendor
is making inappropriate comments to an
employee, it has the same obligation to remedy
the situation as if it were occurring between
two of its own employees. Similarly, harassment extends to anyone that the behavior
impacts, not just the person to which it is
directed. As a result, raunchy conversations
between two willing co-workers may still
create problems if another employee working
in close proximity hears the communications
and is offended.
Legally, the question is whether (1) a reasonable person would find that the conduct
created an intimidating, hostile, or offensive work environment; and ( 2) whether the
employee at issue was actually offended.
Practically, however, conduct that may not
create legal liability can nevertheless disrupt
the workplaces and create significant costs
for the employer. Ultimately, once a dispute
reaches litigation, the costs to the employer are
The most observable cost to employers stemming from harassment in the workplace is
the cost of litigation. Litigating a harassment
case often leads to tens, if not hundreds, of
thousands of dollars in legal fees and costs,
regardless of the outcome. As a result, even
where an employer successfully defends
a lawsuit, the costs will be significant.
Moreover, if a case proceeds to trial, there is
a risk of significant damages. For example,
the University of California recently agreed
to settle a harassment claim for $1.7 million,
after an employee claimed a dean persistently
hugged, kissed, and touched her.
2 A Missouri
jury awarded two Casey's General Store
employees $1.5 million after the employer