How to Prove Harassment in the Workplace

Many people use the term "harassment" to describe any workplace treatment that seems unfair or unduly harsh. From a legal perspective, however, harassment has a very specific meaning: Harassment is conduct that is

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

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

Protected Characteristic

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

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."

Unwelcome Conduct

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.

Severe or Pervasive

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.

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.

Get Legal Help

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

This article is excerpted from The Essential Guide to Workplace Investigations, by Lisa Guerin (Nolo).