Harassment in the Work Place

Equal Rights Publication ERD-7334-PWEB

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Note:
The links (bookmarks) in the Table of Contents take you to that section in this Publication.
The links in the Text take you to either a page in our website, a section in the Wisconsin Statutes or a section in the Wisconsin Administrative Code.

Table of contents

1. What is the Legal Definition?

Under the Fair Employment Law harassment in the workplace may be illegal under two circumstances. The first is when an employer, supervisor or co-worker singles a person out for harassment because of that person’s race, color, creed, ancestry, national origin, age (40 and up), disability, sex, arrest or conviction record, marital status, sexual orientation or military services. The second situation is when the content of the harassment itself relates directly to any of these protected characteristics (i.e. sexual harassment, use of derogatory ethnic or religious terms, age or disability related comments, etc.)

It is important to note that the Fair Employment Law only prohibits harassment in the circumstances described above. There is no general prohibition against harassment. An employer who harasses an employee because of a personal dislike, for example, or who harasses employees in general is not violating the Fair Employment Law, no matter how abusive or hostile the environment might be.

Harassment may include verbal abuse, epithets, sexually explicit or derogatory language, display of offensive cartoons or materials, mimicry, lewd or offensive gestures and telling of jokes offensive to the above protected class members. The behavior must be more than a few isolated incidents or casual comments. It involves a pattern of abusive and degrading conduct directed against a person because of his or her protected class that is sufficient to interfere with work or creates an offensive and hostile work environment.

“Sexual” harassment includes unwelcome sexual advances, requests for sexual favors and verbal or physical conduct of a sexual nature when:

2. When is conduct unwelcome?

Conduct is unwelcome when an employee does not solicit or invite it and when the employee regards the conduct as undesirable or offensive. Since sexual attraction is a normal factor in employee interactions, the distinction between advances that are invited, uninvited-but-welcome, offensive-but-tolerated and flatly rejected may be difficult to discern. This distinction is important because conduct is unlawful when it is unwelcome.

It is important to note that harassment is in the eye of the beholder”. What might be acceptable to one worker might be offensive and unwelcome to another. The U.S. Supreme Court has adopted the “reasonable person” standard in determining if conduct is harassing.

3. What forms does sexual harassment take?

In practical terms, there are two forms of sexual harassment.

Quid Pro Quo (‘this for that’): When employment decisions or expectations (e.g. hiring, promotions, salary increases, shift or work assignments, and performance standards) are based on an employee's willingness to grant or deny sexual favors. Examples of quid pro quo harassment include:

Hostile Environment: A work environment is “hostile” when unwelcome verbal, non-verbal or physical behavior focusing on sexuality is severe and pervasive enough to interfere with the victim’s work performance or be intimidating or offensive to a reasonable person.

Examples of behaviors that can create a hostile environment:

Verbal

Non-Verbal

Physical

4. Important Facts about Harassment

5. How can management respond to harassment concerns?

6. Who is liable for harassment?

How an employer addresses harassment with its employees is likely to be the single most critical issue in determining liability in legal actions.

An employer is responsible for its own acts and those of its agents regardless of whether the acts were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of those acts.

An employer is responsible for harassment between co-workers, if the employer or its agents knew or should have known of the conduct and failed to take immediate and appropriate corrective action.

An employer is responsible when non-employees such as customers or suppliers harass its employee's) during the workday, where the employer or its agents knew or should have known of the conduct and failed to take immediate and appropriate action.

7. What are the Consequences?

Lost Work Time:
Harassment is very disruptive of production.
It can seriously affect victim/employee morale.
It may increase absenteeism and turnover.

Reputation:
An owner’s or company’s community reputation may suffer.

Damages:
A victim’s back pay; attorney fees and costs may be substantial.
Compensatory and punitive damages under federal law may dramatically increase dollar damages.
Other laws, such as state sexual assault statutes, may result in criminal charges.

8. When in doubt about Sexual Harassment!!

Often, an employee or supervisor may not be sure if a particular behavior or interaction is appropriate. The following “not sure” tests might be helpful.

Ask yourself:

This is one of a series of fact sheets highlighting programs of the Wisconsin Department of Workforce Development. It is intended to provide only a general description, not a legal interpretation.

The Equal Rights Division has additional informational materials explaining various aspects of the fair employment law.

PAMPHLET SERIES

1. FAIR HIRING & AVOIDING LOADED INTERVIEW QUESTIONS.
2. HARASSMENT IN THE WORKPLACE.
3. PREGNANCY EMPLOYMENT & THE LAW.
4. PERSONS WITH DISABILITIES ON THE JOB.
5. FAIR EMPLOYMENT LAW & COMPLAINT PROCESS.
6. AGE DISCRIMINATION IN THE WORKPLACE.
7. SETTLEMENT.
8. RACE, COLOR, NATIONAL ORIGIN & ANCESTRY.
9. SEXUAL ORIENTATION PROTECTION.

The Department of Workforce Development is an equal opportunity service provider. If you need assistance to access services or need material in an alternate format, please contact us. Deaf, hearing or speech-impaired callers may reach us in Madison at (608) 264-8752 or in Milwaukee at (414) 227-4081.

Questions about employment discrimination should be directed to:

EQUAL RIGHTS DIVISION

201 E WASHINGTON AVE ROOM A300
PO BOX 8928
MADISON WI 53708

(608) 266-6860
TTY (608)264-8752

Or

819 N 6th St
Room 723
MILWAUKEE WI 53203

(414) 227-4384
TTY (414) 227-4081

Website: http://dwd.wisconsin.gov/er/