What is workplace harassment?

Workplace harassment occurs whenever unwelcome conduct on the basis of gender or other legally protected status affects a person's ability to do their job. Both employers and employees have a responsibility to prevent and stop workplace harassment.

Sexual harassment:

Sexual harassment is defined by the Equal Employment Opportunity Commission (EEOC) as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

• submission to the conduct is made either explicitly or implicitly a term or condition of an individual's employment, or
• submission to or rejection of the conduct by an individual is used as a basis for employment decisions affecting such individual, or
• the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

There are two basic types of unlawful sexual harassment. The first type involves harassment that results in a tangible employment action. An example would be a department head or supervisor who fires a subordinate for refusing to be sexually accommodating. This form of sexual harassment is referred to as quid pro quo ("this for that"). This kind of sexual harassment can be committed only by someone who can effectively make formal employment actions (such as firing, demotion, and denial of promotion) that will affect the victim.

A second type of unlawful sexual harassment is referred to as hostile environment. Unlike a quid pro quo, which only a supervisor can impose, a hostile environment can result from the gender-based unwelcome conduct of supervisors, co-workers, customers, vendors, or anyone else with whom the victim interacts on the job. The behaviors that have contributed to a hostile environment have included:

• unfulfilled threats to impose a sexual quid pro quo;
• discussing sexual activities;
• telling off-color jokes;
• unnecessary touching;
• commenting on physical attributes;
• displaying sexually suggestive pictures;
• using demeaning or inappropriate terms;
• using indecent gestures;
• sabotaging the victim's work;
• engaging in hostile physical conduct;
• granting job favors to those who participate in consensual sexual activity; or
• using crude and offensive language.

These behaviors can create liability if they are based on the affected employee's gender and are severe or pervasive. Nonetheless, even if unwelcome conduct falls short of a legal violation, employers have moral and organizational reasons as well as legal incentives to address and correct that conduct at its earliest stages.

Harassment on bases other than sex:

The quid pro quo type of harassment described happens with respect to sexual harassment. Hostile Environment harassment can happen with respect to any offensive conduct based on other protected statuses, such as race, color, religion, national origin, age, and disability.

With hostile environment harassment, the same principles that apply to harassment based on gender apply to harassment that is based on other protected statuses. In each case, the questions will be whether there was unwelcome conduct, whether the conduct was based on an employee's protected status, whether the conduct was severe or pervasive enough to affect the employee's employment, and whether the employer will be liable for the harassment.

When Does a Work Environment Become Hostile?

To create a hostile environment, unwelcome conduct based on a protected status must meet two requirements:
(1) it must be subjectively abusive to the person(s) affected, and
(2) it must be objectively severe or pervasive enough to create a work environment that a reasonable person would find abusive.

To determine whether behavior is severe or pervasive enough to create a hostile environment, the finder of fact (a court or a jury) considers these factors:

• the frequency of the unwelcome discriminatory conduct;
• the severity of the conduct;
• whether the conduct was physically threatening or humiliating, or a mere offensive utterance;
• whether the conduct unreasonably interfered with work performance;
• the effect on the employee's psychological well-being; and
• whether the harasser was a superior in the organization.

Is It Really Harassment?

Hostile environment cases are often difficult to recognize. The particular facts of each situation determines whether offensive conduct has "crossed the line" from simply boorish or childish behavior to unlawful harassment. One factor to consider is the reasonable sensibilities of the person affected. Courts have recognized that people of different races, cultures, or genders have different levels of sensitivity. For example, conduct that does not offend most reasonable men might offend most reasonable women. Differing general levels of sensitivity have led some courts to adopt a standard for judging cases of sexual harassment that considers the reaction of a reasonable person belonging to the protected group in question.

Because the boundaries are so poorly marked, the best course of action is to avoid all conduct in the workplace that is potentially offensive on the basis of a person's protected status. You should be aware that your conduct might be offensive to a co-worker and govern your behavior accordingly. If you're not absolutely sure that behavior is harassment, ask yourself these questions:

• Is this verbal or physical behavior of a sexual nature?
• Is the conduct offensive to the persons who witness it?
• Is the behavior being initiated by only one of the parties who has power over the other?
• Might the employee feel that he or she must tolerate that type of conduct in order to keep his or her job?
• Might the conduct make the employee's job environment unpleasant?

If the answer to these questions is ''yes,'' put a stop to the conduct.

How Can You Tell if Conduct is Unwelcome?

Conduct is unwelcome if the recipient did not initiate it and regards it as offensive. Often, however, the welcome ness of the conduct will depend on the recipients´ reaction to it.

- Outright rejection

The clearest case is when an employee tells a potential harasser that conduct is unwelcome and makes the employee uncomfortable. A second-best approach is for the offended employee to consistently refuse to participate in the unwelcome conduct.

- Ambiguous rejection

Matters are more complicated when an offended employee fails to communicate clearly. All of us, for reasons of politeness, fear, or indecision, sometimes fail to make our true feelings known.

- Soured romance

Sexual relationships among employees often raise difficult issues as to whether continuing sexual advances are still welcome. Employees have the right to end such relationships at any time without fear of retaliation on the job.

Remember that some offenders may be unaware of how their actions are being perceived. Others may be insensitive to the reactions of fellow workers. Tell the harasser that the behavior is not acceptable and is un welcomed by you. At the very least, refuse to participate in the behavior.

Even if you do not find the conduct personally offensive, remember that some of your co-workers might, and avoid behavior that is in any way demeaning on the basis of a protected status such as gender, race, or religion. In determining if your own conduct might be unwelcome, ask yourself these questions:

• Would my behavior change if someone from my family was in the room?
• Would I want someone from my family to be treated this way?

Respond Appropriately When You Encounter Workplace Harassment

If you experience harassment or witness it, you should make a report to the appropriate official. You do have to report the incident to your supervisor first, especially if that is the person doing the harassing.

Remember that harassment is an organizational problem, and the city wants to know about it so as to take prompt and appropriate action to ensure that no further incidents occur, with the present victim or other employees, in the future. Report incidents immediately, especially if they are recurring.

Participating in an Investigation

All employees have a responsibility to cooperate fully with the investigation of a harassment complaint. Investigations will vary from case to case, depending on a variety of circumstances. While not every investigation will follow the same format, in every case you need to keep certain things in mind:

- Keep it confidential

Whether you are the accused employee, the complaining one, or merely a potential witness, bear in mind that confidentiality is crucial. People have their reputations on the line, and you may or may not know all the facts. In the typical situation the employer will keep the information it gathers as confidential as possible, consistent with local, state and federal laws and both the accused and the complainant will have a chance to present their cases.

- Don't be afraid to cooperate

There can be no retaliation against anyone for complaining about harassment, for helping someone else complain, or for providing information regarding a complaint. The law protects employees who participate in any way in administrative complaints, and city policies protect employees who honestly participate in in-house.

American Disabilities Act (ADA)

Who Must Comply with Title I. of the ADA?

Private employers, state and local governments, employment agencies, labor union, and joint labor-management committees must comply with Title I. of the ADA. The ADA calls these "covered entities."

An employer cannot discriminate against qualified applicants and employees on the basis of disability. The ADA´s requirement ultimately will apply to employers with 15 or more employees.

Covered employers are those who have 25 or more employees (1992) or 15 or more employees (1994), including part-time employees, working for them for 20 or more calendar weeks in the current or preceding calendar year.

Who is Protected by Title I.?

The ADA prohibits employment discrimination against "qualified individuals with disabilities."

A qualified individual with a disability is an individual with a disability who meets the skill, experience, education, and other job-related requirement of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.

Enforcement Provisions.

Title I. of the ADA is enforced by the Equal Employment Opportunity Commission under the same procedures used to enforce Title VII of the Civil Rights Acts of 1964.