Examining Harassment Claims

By: Richard D. Glovsky, Locke Lord LLP.

THIS ARTICLE ADDRESSES PROTECTED STATUS HARASSMENT issues, a subset of discrimination claims that arise where an employee alleges that he or she was subjected to unwelcome conduct in the workplace due to the employee’s protected status (race, sex/gender, age, disability, national origin, etc.). It focuses on the elements of these claims and defenses to them. It also provides practical tips that employers can follow to address, defend, and avoid harassment claims.

Most harassment allegations assert that the employer created a hostile work environment that negatively impacted the terms and conditions of an employee’s employment. But it is important for employers to remember that not all harassment is illegal. Most federal and state laws only prohibit harassment that is “severe or pervasive.” One, or even a few, questionable incidents do not usually amount to unlawful harassment.

Not All Harassment Is Illegal

Many employees do not understand that not all harassment is illegal; it must be premised upon a particular protected category. Federal law, for example, prohibits harassment based on the following grounds:

• Race
• Color
• Religion
• Gender/sex
• Age
• Disability
• National origin
• Ethnicity
• Citizenship status
• Genetic information
• Military status
• Qualified medical leave
• Reporting discrimination

Many state jurisdictions have their own equal employment opportunity (EEO) laws that protect employees who fall into additional protected categories. For example, many states and the District of Columbia have enacted laws prohibiting discrimination on the basis of sexual orientation. To cite another example, Michigan bans discrimination on the basis of height and weight.

Localities have also adopted categorical protections. For instance, New York City protects the unemployed from discrimination, while Broward County in Florida prohibits discrimination on the basis of political affiliation.

Because protected classifications vary from state to state and even city to city, when advising employers about potential harassment claims, you should be familiar with the laws of each state, county, and municipality where the employer is located.

Types of Harassment Claims

Generally, there are two types of unlawful harassment:

1. Hostile work environment. A hostile work environment exists when an employee’s workplace is so permeated with discriminatory intimidation, ridicule, abuse, and/or insult that it alters the terms and conditions of the employee’s employment and creates a hostile work environment.
2. Quid pro quo harassment. Quid pro quo harassment occurs where conditions of employment or job benefits are dependent upon an employee submitting to unwelcome conduct (usually sexual advances) or where an employer retaliates against an employee who rejected such unwelcome conduct.

To read the full practice note in Lexis Practice Advisor, follow this link.

Richard D. Glovsky, a partner in Locke Lord’s Boston office, co-chairs the firm’s robust Labor and Employment Practice Group. He handles employment litigation, including class actions, wage and hour issues, and discrimination and retaliation claims; prosecutes cases for Fortune 500 companies and other businesses to protect their trade secrets and to prevent former employees from violating non-competition and non-solicitation obligations; and is a valued counselor on employment related matters. He is a former Assistant United States Attorney and Chief of the Civil Division of the United States Attorney’s Office for the District of Massachusetts.

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