If you own a business and are working to prevent harassment, it is crucial to understand what harassment is. Do you know what behavior the legal system considers as harassment? Many employers do not have a firm grasp of what constitutes harassment, other than a common sense notion of it.
The EEOC’s proposed guide against unlawful harassment (downloadable at the EEOC website) discusses two main harassment categories.
Severity of Harassment Incidents
The severity of one incident can determine a hostile work environment. The following types of incidents are considered severe:
- Sexual assault
- Touching of an intimate body part
- Physical violence or the threat of physical violence
- The Use of symbols of violence or hatred toward individuals sharing the same protected characteristic (swastika, image of a Klansman’s hood or a noose)
- Use of the “n-word” by a superior
- Use of animal imagery for comparing a worker to a monkey, ape or other animal
- Threats to deny job benefits based on the person’s rejection of sexual advances
When the above conduct occurs in the presence of coworkers or clients, the court may consider it even more degrading and therefore more severe.
Pervasiveness of Harassment Incidents
Pervasiveness refers to the frequency of conduct along with the cumulative effect of certain behavior. Even though there is no set number that establishes the pervasiveness, the intensity or amount of time passing between incidents is a factor. The closer together the incidents are, the more pervasive the harassment is.
The fact that the behavior is unwelcome, and the worker has expressed this fact is also relevant in determining whether harassment occurred. Sparse instances spread out over a number of years may not be considered harassment.
An example of pervasiveness would be making sexual overtures, such as sending revealing photographs, notes asking for dates, communications about how attractive the person is and descriptions of fantasies about the person.
If you have questions about whether harassment is occurring in your company, seek a legal opinion and find out how to deal with it.
At Stephen Hans & Associates, our employment litigation firm assists small and medium sized business owners in employment related matters.