Workplace harassment: Federal and state protections for employees

By Christy Aumer, Staff Counsel

In recent years, education professionals have become more and more sensitive to bullying in schools.

As you probably know, the bullies are not necessarily the students. When I speak with our members, it is not uncommon to hear them refer to their workplace as a "hostile environment" or call their employer's behavior "harassment." So, when does workplace bullying violate the law? When is unfair treatment illegal? This segment of "Your Rights" will define illegal harassment and clarify some of the common misconceptions in this area of the law.

Federal and state laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Iowa Civil Rights Act (ICRA), prohibit employers from discriminating against employees on the basis of race, color, religion, sex, national origin, disability status, and age. These provisions also prohibit employers from harassing, or permitting the harassment, of employees "because of" their membership in one of these classes.

Although anti-discrimination laws provide effective and necessary protections against discriminatory behavior, they do not provide a complete ban on arbitrary and unfair treatment of employees by their employers.

Illegal harassment is generally divided into two distinct categories--quid pro quo and hostile work environment. Quid pro quo harassment makes the most sense in the context of sexual harassment, which is the focus of the most intense litigation dealing with harassment claims. This type of harassment is marked by the offer of benefits or the threat of reprisal connected with a request for sexual favors.

The second type of harassment occurs when the work environment is plagued with an atmosphere of antagonism or hostility that is so "severe or pervasive" so as to "alter the conditions of the victim's employment and create an abusive working environment." Pennsylvania State Police v. Suders, 542 U.S. 129, 146 (2004).

Harassment can manifest itself in many ways, such as unwelcome sexual advances, requests for sexual favors, verbal or physical conduct of a sexual nature, racial or ethnic slurs, racial jokes, derogatory comments, or other menacing verbal or physical conduct based on the protected classes. This behavior violates federal and state law when an employee's acceptance or rejection of the behavior affects the conditions of the individual's employment or creates a threatening or offensive work environment.

Not all unfair or offensive behavior is illegal harassment. When an employer's treatment of one employee is more pestering or aggressive than his treatment of another employee, the employer is not necessarily in violation of federal and state harassment laws. If, for instance, there is evidence that the dissimilar treatment is rooted in a personal bias against the employee's race or sex, illegal harassment may be afoot. If there is no suggestion that the dissimilar treatment is caused by the employee's national origin, sex, race, religion, color, disability, or age, it is not illegal harassment.

If you believe you are a victim of illegal harassment, I suggest you do the following: First, be sure to document the behaviors or statements you find offensive; and second, raise the issue with your employer immediately. You are entitled to work in a place free of discrimination and bias-based harassment. If you feel you would like assistance in dealing with the matter, contact your UniServ director for support. Do not feel you have to deal with harassment on your own.

September 2006 Communiqué