Harassment and Discrimination In The Workplace
Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e), the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. §621), and the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §12101).
In addition to these federal laws, states also have laws against discrimination and harassment in employment. These state laws are generally located in a state’s statutes—often in the labor code or employment-related statutes.
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
Offensive conduct may include offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including the following:
• The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but can be anyone affected by the offensive conduct.
• Unlawful harassment may occur without economic injury to, or discharge of, the victim.
Prevention is the best tool to eliminate harassment in the workplace. Employers are encouraged to take appropriate steps to prevent and correct unlawful harassment. They should clearly communicate to employees that unwelcome harassing conduct will not be tolerated. They can do this by establishing an effective complaint or grievance process, providing anti-harassment training to their managers and employees, and taking immediate and appropriate action when an employee complains. Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed.
Employees are encouraged to inform the harasser directly that the conduct is unwelcome and must stop. Employees should also report harassment to management at an early stage to prevent its escalation.
Employer Liability for Harassment
The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: (1) it reasonably tried to prevent and promptly correct the harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.
When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.
Sexual Discrimination and Harassment In The Workplace
Sex-Based Discrimination
Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex.
Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.
For the regulations related to sex discrimination and harassment, see the Code of Federal Regulations, beginning with 29 CFR 1604.1.
Sex Discrimination and Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Sex Discrimination and Employment Policies or Practices
An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business.
Sexual Harassment
It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
In Texas, harassment and discrimination in the workplace are prohibited under both federal and state laws. Federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act set the groundwork for what constitutes unlawful harassment and discrimination, including sex-based discrimination and sexual harassment. These laws protect against unfavorable treatment due to race, color, religion, sex, national origin, age, disability, or genetic information. Texas follows these federal guidelines and also has state-specific statutes that address employment discrimination, primarily found in the Texas Labor Code (Chapters 21 and 61). The Texas Workforce Commission is the state agency responsible for enforcing these laws. Harassment becomes illegal when it creates a hostile work environment or when enduring it becomes a condition of employment. Employers in Texas are liable for harassment by supervisors that results in negative employment actions and may be liable for non-supervisors if they knew or should have known about the harassment and failed to take action. Employers are encouraged to prevent harassment with clear policies, training, and effective complaint processes. Employees should report harassment early to prevent escalation. The specifics of each case determine the legality of the conduct, with the EEOC investigating allegations on a case-by-case basis.
