“I think my boss is harassing me.”
It’s a statement I’ve heard a lot over the past five years. I represent employees in workplace discrimination matters, so people often come to me when they are having problems at work or feel that they are facing harassment by managers in the workplace.
Whether the conversation is the result of a paid consultation with my firm or a friend pulling me aside at lunch, I always respond to this statement the same way: What is going on? What did your employer do? What have they said? Are there others they treat the same way? Are there others who are treated better?
For workplace conduct to be considered harassment, it must check certain boxes under the law. Harassment, in the colloquial sense, is very different than unlawful harassment based on a protected class.
Many times, when an employee tells me they’ve been harassed at work, the conduct they describe does not fit the conduct prohibited by law. Of course, there are things your boss should never do. But bullying, angry outbursts and nasty attitudes aren’t illegal on their own. For an employer’s actions to be considered illegal, they must be based on a protected class.
By definition, unlawful workplace harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA) and the Americans with Disabilities Act of 1990, (ADA).
Each of those laws prohibits discrimination at work. Title VII prohibits discrimination on the basis of sex, race, color, national origin and religion. Sexual harassment, for instance, falls under the scope of Title VII. The ADEA prohibits discrimination based on age, and the ADA outlaws disability-based discrimination.
A negative boss is never a pleasant thing to have. Knowing how to discern whether their conduct is unlawful or whether they are just being a jerk is important.
If you think you're facing harassment in the workplace, here are three signs for which to look out.
One very obvious way to tell if your boss is harassing you — in the case of sexual harassment — is if they make sexually explicit or sexually suggestive remarks, or if they subject you to unwelcome sexual behavior. As the Equal Employment Opportunity Commission (EEOC) states, 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.
A boss who subjects you to unwanted sexual conduct is a major red flag. Moreover, their behavior may even break certain criminal laws depending on the severity of it. This is never OK, and you should always report such conduct through your employer’s complaint channels and to agencies like the EEOC or your equivalent state agency.
Signs of sexual harassment aren't always obvious. And harassment does not have to be of a sexual nature in order to be considered unlawful harassment under Title VII. It can also include offensive remarks about a person’s sex in general. For example, as the EEOC states that it is illegal to harass a woman by making offensive comments about women in general.
Examples of such unlawful comments include statements such as “women change when they get pregnant and have babies,” or that a woman can’t do a certain job as well as a man.
For the unlawful conduct to be considered harassment, it must be “so frequent or severe that it creates a hostile or offensive work environment” or “result in an adverse employment decision (such as the victim being fired or demoted).” In any event, the alleged behavior must rise above simple teasing and general bullying. Courts are not plaintiff-friendly in this regard.
Similarly, your boss may be harassing you if they make inappropriate remarks or target you based on your race, color, religion, national origin, age (40 or older), disability or genetic information. Offensive conduct may include, but is not limited to “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.”
A boss who targets you or other employees in this manner based on a protected status like discriminating against someone's religion may be engaging in unlawful harassment. But whether a certain comment or conduct will be found to be unlawful harassment is still case-specific. When investigating a claim, the EEOC “looks at the entire record: including the nature of the conduct and the context in which the alleged incidents occurred.” Determinations of whether harassment is severe or pervasive enough to be illegal are “made on a case-by-case basis.” Any subsequent court reviews would do the same, as would your state civil rights agency should you choose that route instead.
If your boss does not specifically target you or others based on the above-protected classes, or if their conduct does not rise to the “severe or pervasive” standard set by the courts, they may not be engaging in harassment. Instead, they might just be difficult. You may just be handling an unprofessional manager.
Some examples of a boss who is probably not harassing you, but is likely just being difficult include the following:
It's important to note that the above list is not exhaustive and, of course, these scenarios are all case-specific. If you are dealing with a cruel boss, you might want to start considering how to get out of a hostile work environment anyway.
You should always consult with an employment discrimination attorney in your state if you believe you are the victim of harassment. They will be able to instruct and guide you through the complaint filing process and can help you navigate these issues at work and beyond.
Here are some more Fairygodboss posts that can serve as resources to you to help you better understand workplace harassment. But, remember, it's important that you reach out to professionals to take appropriate action.
Candace is a practicing attorney, working parents advocate, freelance writer, and proud mom. Her legal practice focuses on workers’ rights. She can be found writing about law, motherhood, and more on her blog as The Mom at Law.
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