Harassment is one of those words that can be used in a number of different ways in life, but has a very specific meaning in the law. In life, you might say that telemarketer that always calls at the same time every evening is harassing you. When you go to a baseball game, you may sit next to a fan who verbally harasses the visiting team every time they get up to bat. At work, you might find the supervisor who regularly sends you off-hour work questions and requests to be harassing. In these general ways, we use the term harass and harassment to refer to annoying behavior that’s repeated over and over.

In legal terms, harassment has a much narrower meaning. In this post, we’ll discuss the definition of workplace harassment under the law and how it can differ from what you may think of as harassment in your everyday life. We’d also encourage you to read last week’s post for some examples of harassment in the workplace.

Eisenberg & Baum has years of experience handling workplace harassment cases. We’re based in New York City and have attorneys licensed in many states throughout the country; we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help you understand your own workplace harassment case no matter where you are.

Harassment Definition Under the Law

Harassment can be a form of employment discrimination under various federal, state and local laws. Workplace harassment is considered discriminatory and is unlawful when an employee suffers unwelcome conduct based on a protected trait and either the employee had to endure the conduct in order to keep their job or the conduct was so severe and pervasive it created a hostile work environment. We’ll talk about each of the main elements of workplace harassment below.

Unwelcome Conduct

Workplace harassment must include some form of unwelcome conduct. The conduct can be verbal (e.g., offensive jokes and slurs) or physical (e.g., groping or pushing), and the person or people doing the harassing can be almost anyone in the workplace, including a supervisor, co-worker, contractor or customer. Another key to the conduct is that it must be considered unwelcome. An employee’s conduct will help show whether the conduct was considered unwelcome. In some cases, such as when an employee is subjected to racial slurs and reports the incident immediately, this part can be relatively easy to show. In other situations, whether the conduct was unwelcome may not be as obvious. For example, an employee who claims they were sexual harassed because their co-workers repeatedly told sexually explicit jokes at work may have difficulty proving the conduct was unwanted if they participated in the activity by responding with their own offensive comments and jokes.

Protected Characteristics

In order to be considered discrimination, the unwelcome conduct must be based on some protected trait. Under federal law, those traits include race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. Many state and local governments have enacted similar anti-discrimination laws, like New York State’s Human Rights Law, which prohibits discrimination on grounds similar to those protected under federal law as well as sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence.

Harassing behavior directed at an employee for reasons other than these protected characteristics is not grounds for an employment discrimination claim. So, if you have a co-worker who makes fun of you because you have a collection of troll dolls on display in your office or a boss everyone considers overbearing and a micro-manager, you may not be happy at work, but you don’t necessarily have a discrimination claim based on harassment.

Severe and Pervasive

Another key element to a workplace harassment claim is the impact the harassment has on the employee. In order to be considered discriminatory under the state and federal law, the harassing conduct either has to become a condition of continued employment or has to be so severe or pervasive that it creates an environment a reasonable person would find intimidating, hostile, or abusive (also known as a hostile work environment). In some cases, the harassment is so blatant that it is clearly tied to the continued employment of the employee being harassed. A typical example of this would be a sexual harassment case in which a supervisor requires an employee to endure the harassment in exchange for keeping their job. However, under the New York City Human Rights Law, the element of severe and pervasive need not be proven for liability.

More frequently, the conduct is not clearly tied to continued employment, so the employee must demonstrate a hostile work environment was created by the conduct. This typically requires something more than an offhand remark by a co-worker. An employee might consider a single incident, like an offensive joke told by a co-worker, to be harassing in the general sense, but under the state and federal law the activity is not considered harassment unless it is so severe and pervasive it creates a hostile environment. An employee generally needs to show a pattern of harassment to establish the existence of a hostile work environment. Also, the conduct must be considered from the viewpoint of a reasonable person. Even if an employee is particularly sensitive to remarks by their co-workers, the law will still look at whether a reasonable person in that employee’s shoes would have found the remarks severe and pervasive enough to create a hostile environment.

Get Legal Help

If you feel you’re being harassed at work but aren’t sure whether the conduct is harassment under the legal definition, please contact Eisenberg & Baum. We’ll talk with you about the facts of your case and help you understand your legal options going forward. We offer free initial consultations for employment discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.