State law protects workers from harassment in the workplace because of their race, color, creed, ancestry, national origin, age (40 and up), disability, sex, arrest or conviction record, marital status, sexual orientation, or membership in the military reserve.
Harassment may include verbal abuse, epithets, and vulgar 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 protected class member that is sufficient to interfere with their work or create an offensive and hostile work environment.
State law does not protect workers from general workplace harassment or bullying unconnected with some characteristic under the law.
The statute of limitations for filing a complaint is 300 days from the date the action was taken or the individual was made aware the action was taken.
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 (e.g. sexual harassment, use of derogatory ethnic or religious terms, age or disability related comments).
“Sexual” harassment includes unwelcome sexual advances, requests for sexual favors and verbal or physical conduct of a sexual nature when:
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.
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:
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.
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.