Employees may suffer harassment or a hostile work environment at the hands of co-worker, supervisors, upper management, customers and service providers. Not all forms of harassment in the workplace are prohibited by law. Your boss can be a jerk as long as your boss is not a jerk in a manner prohibited by law. Both federal and Texas law prohibits harassment or hostile work environment when the basis of the harassment or hostility is the protected status of the employee or the exercise of a protected employment right. These protected statuses include age, disability, national origin, race/ethnicity/color, religion and sex/gender. You can also be harassed for exercising a right, such as taking FMLA approved leave, requesting a reasonable accommodation for a disability, exercising your unionize or work together with co-workers to improve work conditions, or retaliation for bringing a wage claim or discrimination claim. Working with an workplace harassment attorney can help you protect yourself and your job against harassment in the workplace.
What is unlawful harassment?
Under federal and Texas law, unlawful harassment occurs in three ways. First, it can occur when a member of management takes some step against your employment, such as termination, failure to promote, or a demotion, on the basis of your protected status or exercise of a right. Second, it occurs when enduring offensive conduct becomes a condition of continued employment. This often occurs in sexual harassment cases where the manager makes the subordinate continue a sexual or dating relationship to keep his or her job. Third, it can occur when the employee is exposed to offensive conduct on the basis of a protected status or exercise of a legal right when the offensive conduct is pervasive or severe enough to create a work environment that is intimidating, hostile, or abusive.
This third scenario is what most people think of when they think of a hostile work environment, because this is the scenario in which the people around the employee are engaging in offensive conduct. Unlawful harassment can occur when the offensive conduct is coming from management, co-workers, or people the employer can control, such as contractors, service providers, or customers. A key point in this scenario is that the offensive conduct must be pervasive or severe. That means minor annoyances or infrequent, isolated incidents will not rise to the level of unlawful harassment. The exception is when the isolated incident is particularly severe, such as an assault or sexual assault.
When the employer is liable for unlawful harassment
Determining when the employer becomes liable for a hostile work environment is an extremely important element of proving a harassment or hostile work environment claim. The employer’s liability is different depending upon how the harassment occurs and who is perpetrating the offensive conduct.
If a member of management is harassing the employee and causes a negative effect (called an adverse employment action) on the employee’s employment, such as terminating, demoting, failing to promote, then the employer is automatically liable for the hostile work environment.
If a member of management is harassing the employee but there is not an adverse employment action against the employee then the employer has an opportunity to avoid liability. The employer must prove that it reasonably tried to prevent and correct harassing behavior and that the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer. If the employer cannot prove both of these conditions are true then it will be liable.
If the harassment is coming from anybody else then the employer will be liable if it knew or should have known about it and failed to take prompt and appropriate corrective action.
What an employee must do when unlawfully harassed
Often employees are harassed but there are no adverse employment actions. Rather than suffer the ongoing hostility, employees quit or take demotions to avoid the hostile work environment. This is called a constructive discharge, which means the employer made conditions so unbearable that the employer is treated as though it made an intentional decision to terminate the employee. The problem in these cases is that the employee must prove the harassment was unlawful and that the employer is liable for it.
In our first scenario, where a supervisor is engaging in an adverse action, the employer has made an intentional act against the employee. There is no need to prove the constructive discharge. Instead, if this has happened to you then you need to contact an employment lawyer quickly to assess your situation and move forward to protect your rights.
In our second scenario, where the supervisor is harassing but there is no adverse action, the employee needs to look at the employer’s anti-harassment policy. Most employers have some form of anti-harassment policy that includes a process to report harassment. You must follow this process and report the harassment. The employer will be liable if it does not take appropriate steps to end the harassment. The exception here is when following the process would be truly useless. An example of this rare exception would be if the person you must report to is the harasser or the harassment is coming from the owner of the company. Otherwise, if you do not report the harassment you cannot prevail on a constructive discharge claim.
In our third scenario, where harassment is not coming from management, you need to report the harassment. If your employer has an anti-harassment policy, you should follow the policy and inform your immediate supervisor, if that is not the designated person in the policy. Here, the requirement to report is not an absolute requirement but your claims will be much stronger if you report it.
Regardless of which scenario has resulted in harassment affecting your job, you should speak with an employment lawyer about your situation to determine your rights and claims. Contact my office to discuss your case.