Most people have heard of sexual harassment, but harassment based on any protected characteristic — such as race or religion — is also illegal.
Most employees have heard of sexual harassment, but harassment based on other protected characteristics is also against the law. If you are being harassed by a manager or supervisor because of your race, disability, or age, for example, you may also have a valid legal claim against your employer.
What Is Harassment?
Harassment is offensive, unwelcome conduct — whether words, actions, gestures, or visual displays (like posted cartoons or pornography) — that is so severe or pervasive that it affects the terms and conditions of the victim’s employment. Legally, harassment is a form of discrimination: It is illegal only if based on a person’s race, gender, age, disability, or other characteristic.
Sexual harassment gets the most publicity, but harassment can be based on other characteristics too. For example, a manager who teases an employee about her disability, calls her names, and excludes her from workplace meetings and social events may be guilty of harassment. Similarly, a supervisor who calls an older employee “gramps” and “old-timer,” jokes about his “senior moments,” and passes him up for promotion because of his age may be committing harassment.
Liability Rules for Harassment By Managers
Harassment can be committed by managers, coworkers, or even third parties, such as clients, customers, or contractors. (For more, see What Is Third Party Sexual Harassment?)
Generally, the employer is legally responsible only for harassment it knows about. For example, if an employee is being harassed by coworkers or a client, but never reports the harassment, the employer won’t be liable unless it finds out about the harassment in some other way (for instance, because executives overhear the harassment while touring the department).
However, when a manager is the harasser, the rules are different. If the employee is subjected to a “tangible employment action” due to the harassment, the company will be liable. For example, if a supervisor refuses to promote an employee unless she goes on a date with him, of subjects an employee to discipline or cuts his hours because of his religious beliefs, those are negative job actions that make the employer legally liable. The logic behind this rule is simply that the company can act only through its managers, and has to be legally liable if those actions result in demotion, transfer, or other negative job actions.
If an employee is not subjected to a negative job action of this kind, the company will be liable only it knows about the harassment. For example, if an employee’s manager teases her about her national origin and calls her names, but doesn’t demote, discipline. or otherwise take negative action against her, the company will be liable only if the employee reports the harassment or the company finds out about it in some other way.
If You’re Facing Management Harassment
If your manager is harassing you based on a protected characteristic, there are two things you should do: Consult with an experienced employment lawyer, and make an internal complaint of harassment to your company. A lawyer can assess the facts and let you know whether you have a strong claim. A lawyer can also help you navigate the company’s investigation, gather evidence, and decide how best to protect your rights. Whether or not you talk to a lawyer, however, you should report the harassment within your company. As you can see from the discussion above, your company may not be liable for the harassment unless you file a complaint. On a practical level, the company can’t do anything to stop the harassment and remedy the situation until it knows about the problem.