You may have the feeling you’re being harassed at work, but you’re not sure whether you have an actual legal claim. There can be a difference between what one individual employee feels is harassment and what constitutes illegal harassment under federal, state and local laws. Merely being bothered by a supervisor or co-worker, while unfortunate for an employee, does not necessarily mean you have a legal claim for harassment. Workplace harassment has a very specific definition under the law. We’ll discuss that definition and give some common examples of harassment in the workplace.
If you have experienced what you believe to be harassment at your job, these examples can help you understand some of the types of harassment that lead to a legal claim. If you’d like more guidance on your rights, contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help and advocate on your behalf.
Harassment can be a form of employment discrimination under various federal, state and local laws. In order to be considered discrimination, the harassment must be based on some protected trait -- some aspect of who the employee is, rather than his or her behavior or performance on the job. Under federal law, those traits include:
Many state and local governments have enacted similar anti-discrimination laws which overlap with the federal protections. New York State’s Human Rights Law adds protections for discrimination or harassment based on a person’s:
Illegal workplace harassment under the state or federal law happens when an employee suffers unwanted conduct based on a protected trait and either:
Typically, isolated incidents of unwanted conduct or petty slights won’t be enough to file a claim under anti-discrimination laws, though that’s not a hard and fast rule. Some conduct can be so severe that even one incident can create a legal claim of workplace harassment. The examples we provide below tend to focus on the more common situation where an employee is subjected to continued unwelcome conduct over an extended period of time.
Harassment can come in many forms and from many sources. The harassing conduct can be verbal or physical and the harasser can be a co-worker, supervisor or even an non-employee like a customer or contractor. Under New York State’s Human Rights Act, non-employees are also protected if they are doing business at the company’s location (including contract workers or vendors). Here are some common forms of workplace harassment.
Possibly the most common behavior that comes to mind when you think of workplace harassment is verbal harassment. Verbal harassment can include jokes, innuendos, slurs, name-calling and insults, among other things, as long as the behavior is based on a protected trait.
One discrimination case settled between the federal Equal Employment Opportunity Commission (EEOC) and an Arizona-based aviation services company provides a good example of the type of verbal conduct that can create a workplace harassment claim. In that case, an employee of the company claimed he was harassed based on his national origin (Turkey/Palestine) and religion (Islam). The employee said that his supervisor made insulting remarks to him, including that he "dressed like [he was] gonna blow up the World Trade Center," and made derogatory jokes about Arabs. Despite the fact that the employee reported this conduct to his employer, the employer did nothing to stop it and the employee eventually resigned. The company eventually settled the case for $50,000.
In another EEOC case against the restaurant chain Golden Corral, the verbal harassment focused on the employee’s mental disability, and then turned to sexual harassment. The company’s dishwasher had a form of high-functioning autism. His assistant manager called him a “retard” and “stupid”, swore at him, and threatened to sexually assault him, demanding oral sex. Eventually, the employee was forced to leave because of the hostile work environment after he was again assigned to report to the same abusive manager. He filed a complaint with the EEOC, which sued Golden Corral’s parent company, Jax, LLC. The case eventually settled for $85,000.
Though physical harassment is less common than verbal harassment, it can often be more severe. Physical conduct, like hitting, pushing, groping and other touching, can be present in any number of harassment claims, but is often associated with sexual harassment.
For example, in a sexual harassment case filed by the EEOC against Red Lobster, several female employees alleged their manager created a hostile work environment by, among other conduct, physically harassing them. The conduct included the manager pressing himself against the employees as well as grabbing and groping them. Again, the employees complained to their employer, but no action was taken. After the EEOC filed suit on the employees’ behalf, Red Lobster agreed to pay $160,000 in damages and make other changes at its restaurant to avoid similar incidents in the future.
Starting in 2019, New York State law now requires all employers to train new hires and existing employees about how to prevent and respond to physical sexual harassment. This training must include examples of workplace harassment and explain an employee’s rights and remedies if they find themselves the target of illegal and unwanted behavior.
Harassment can be most intimidating when it comes from a boss, manager, or supervisor. Supervisors can use their position of authority to subject employees to discriminatory conduct, leaving the employee feeling trapped and vulnerable. Federal courts have found that when it is the employee’s supervisor doing the unwanted conduct, it creates a claim for workplace harassment that much sooner.
In another sexual harassment case, brought by a female employee of UBS Financial Services, a manager and UBS Vice President allegedly harassed the employee over a period of several years with repeated inappropriate sexual comments, remarks about her body, explicit emails and phone calls to the employee’s home. The employee complained to her employer, but instead of getting relief from the harassment, she was ultimately fired. The employee filed a lawsuit against UBS and received an award of $8.4 million.
Supervisor harassment can even come from the owner of the company itself. When you work for a small business, sometimes it can be hard to get relief under Title VII or other federal anti-discrimination laws. However, the New York State Human Rights Act applies no matter how small the company is. When a popular New York restaurant owner created a “culture of fear” among his employees, they went to the press to make their stories heard. The New York Human Rights Division reviews these kinds of cases. If no resolution can be reached, state residents can sue their bosses in state court.
While coworkers may not have the same level of authority over an employee, they can also create an intimidating work environment for employees that is just as unlawful as harassing conduct of a supervisor.
A case brought by the EEOC against a North Carolina trucking company in 2011 exemplified the type of hostile work environment case that can be created by the discriminatory actions of coworkers. The EEOC brought the case on behalf of two African-American employees, alleging their employer had allowed a racially hostile work environment to exist. According to the EEOC, that environment was created, in large part, by coworkers who made derogatory and threatening comments to the employees, used racial slurs and even displayed a noose in the workplace. The jury in that case agreed that the employees had been harassed based on their race and awarded them a total of $200,000 in damages.
In another EEOC complaint, several partners of a top law firm sued the firm for coworker harassment and gender discrimination they said created a “fraternity culture” at work. Among their claims, the female lawyers said that male partners would demand that they sing and dance, force the women to climb over them or push them into pools at company parties, and make sexualized comments about the female employees’ clothes, high heels, or smiles. When these male partners would make inappropriate jokes they would often say “add it to the file” acknowledging that their conduct was illegal. The case requested over $2 million in damages.
The examples of unlawful workplace harassment don’t end with what we’ve listed above. In some cases, there is a mixture of unwelcome conduct (both verbal and physical) and harassers (supervisors, coworkers and others) that ultimately creates a discriminatory environment for an employee. In other cases, the initial workplace harassment is made worse by retaliation when employees speak out. Each case of workplace harassment is unique. Whether it rises to a level of illegal discrimination depends on the specific facts of the case.
At Eisenberg & Baum, LLP, our employment discrimination lawyers have seen countless examples of workplace harassment. We know what it takes to make, and win, a case for sexual harassment and gender discrimination in state or federal court. If you’d like to discuss the facts of your own employment harassment claim with an experienced attorney, please contact us. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.