How to Prove Harassment in the Workplace

Learn the elements of a workplace harassment claim and how to prove your case in court.

By , J.D., UC Berkeley School of Law

No one should have to endure harassment at work. Not only can it make employees miserable and unproductive, it can also be illegal.

This article explains what you need to know about unlawful harassment, including what it is and what you should do if you encounter it.

What Is Workplace Harassment?

From a legal perspective, harassment has a very specific meaning. Harassment is conduct that is

  • based on the victim's protected characteristic, such as race, gender, or nationality
  • offensive
  • unwelcome, and
  • severe or pervasive enough to affect the terms and conditions of the victim's employment.

Many people use the term "harassment" to describe any workplace treatment that seems unfair or unduly harsh. But it's only unlawful harassment if it meets the criteria above.

To win a harassment lawsuit, you'll have to prove each of these elements in court.

What Is a Protected Characteristic in a Workplace Harassment Case?

Legally speaking, harassment is a type of discrimination. In other words, harassment is illegal only if it's based on the victim's race, gender, age, disability, or other protected characteristic.

Which characteristics are protected are determined by federal laws—such as Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act—and by state and local laws that prohibit discrimination. (For more on the federal laws that prohibit discrimination, see Laws Prohibiting Discrimination.)

General complaints about working conditions don't meet this standard unless the employee is being subject to tougher supervision or more onerous rules because of, for example, race or gender.

Offensive Conduct and Workplace Harassment

Harassment can take many forms, from derogatory jokes based on ethnicity or age to name-calling and slurs to threats and outright physical violence. In sexual harassment cases, the harasser might insist that the victim go on a date or otherwise accept his sexual advances or miss out on work opportunities.

For example, a supervisor might condition a raise or promotion on the victim putting up with his advances. These are called "quid pro quo" cases.

The other type of harassment is called "hostile work environment" harassment. In these cases, the harassment doesn't directly result in discipline or lost opportunities but does make it difficult for the victim to work because of constant ridicule, belittling comments, teasing, sexual come-ons, and so on.

This type of harassment may take the form of comments about an employee's protected characteristic or it may be more subtle. For example, a manager may treat workers of a certain ethnicity better than other workers.

Here are some examples:

  • A Jewish office worker is subjected to jokes about the Holocaust and is assigned to a bookkeeping position because, his supervisor says, "Jews know how to handle money."
  • An African American salesman works at a car dealership. His coworkers make racist comments about nonwhite customers; after he tells them that he finds their comments offensive, they start referring to themselves jokingly as "the KKK."
  • A clerical worker with cerebral palsy is mimicked by her supervisor, who ridicules her speech and the way she walks, blames her for errors she did not commit, and tells her coworkers that she is incompetent "but we can't fire her because she's disabled."

When Is Conduct Unwelcome in a Harassment Case?

Harassment is illegal only if the conduct or statements are unwelcome to the victim. In many cases, this isn't really an issue—being referred to by offensive or derogatory terms or threatened with violence is not "welcome" to the recipient.

However, this is sometimes a disputed issue in sexual harassment cases, because some sexual advances, comments, or jokes may not offend the recipient.

If, for example, the harasser can show that the victim also made lewd jokes and didn't appear uncomfortable, the victim will have a harder time proving that the conduct was unwelcome.

What Is Severe or Pervasive Conduct in a Harassment Case?

Generally, harassment is illegal only if there is a pattern or series of incidents over time. One teasing comment, request for a date, or even use of a bigoted epithet probably doesn't constitute harassment by itself. On the other hand, courts have found that a single act can be harassment if the act is truly extreme, such as a physical assault.

There's no clear line or "magic number" of incidents when name-calling, teasing, and such cross the line to become harassment. Courts will look at all of the circumstances in deciding whether harassment has occurred. This means that the court will consider all of the incidents in context. The more egregious each incident is, the fewer will be necessary for an employer to be held liable for harassment.

Workplace Harassment Affecting the Terms and Conditions of Employment

There are several ways harassment might affect the terms and conditions of the victim's employment. If the harasser is a supervisor or someone else who has the authority to make job decisions, harassment might take the form of a negative job action, such as firing, failing to promote, or an undesirable transfer or reassignment.

In a hostile environment case, the victim must show that he or she reasonably finds the workplace to be abusive or hostile as a result of the harassment. The keyword is "reasonable": It is not enough that the victim believes the workplace is hostile. The circumstances must be such that a reasonable worker in the victim's position would also find the workplace hostile.

Learn more about the Legal Remedies for Employer Harassment.

Proving a Workplace Harassment Case

Alleging workplace harassment isn't the same as proving it. To prove your case, you need evidence.

If you're experiencing harassment, your best course of action is to document everything. If a coworker makes an offensive remark to you, write down what was said, who was present, and when it occurred. Repeat the process whenever and however harassment occurs. If offensive materials are being passed around or posted on office message boards, take photos or screenshots.

When you speak to your supervisor to complain about the harassment, note the details of the conversation. And try to get a response in writing if possible. You'll want to show that you raised your concerns with management at the earliest possible opportunity.

Witness statements can also be crucial in workplace harassment cases. If your coworkers can provide signed affidavits as to what they saw or heard, that could help you case.

Finally, as soon as you suspect that illegal harassment has occurred, consult an experienced employment lawyer to discuss how to proceed.

Get Legal Help

If you are facing harassment at work, you should consult with a knowledgeable employment lawyer. A lawyer can help you figure out the best course of action and protect your rights.

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