The same laws that govern discrimination, also govern harassment. That means that the only kinds of harassment that are actionable are those that are based on race, color, religion, national origin, sex, age or disability.
I get calls all the time from people who complain that their boss is just the worst. He yells at them. He micro-manages them. He criticizes them. - "He's harassing me!" they exclaim. And they're right. He IS harassing them. But it isn't against the law. THERE IS NO LAW AGAINST JUST PLAIN BAD BOSSES.
In fact, being a bad boss can form the basis of the company's defense. It is called "the ass-hole defense." He wasn't discriminating against her - he treats everyone that way, because he's just an asshole. It's embarrassing for the defense attorney to have to argue that defense-but it works.
However, any kind of harassment, even the kinds that are not actionable, can push an employee to leave work on a stress-related disability. This can open the employer up to a Worker's Compensation claim or a claim on the employer's disability insurance policy.
So, even if there is no threat of legal action, it is still a good idea for the Employer to weed out harassment, in any form it appears.
SEXUAL HARASSMENT: The biggest problem with sexual harassment is not that people know it is wrong. It is trying to understand what it IS. If your company has just gotten the biggest contract in its history, is it OK for the boss to hug his subordinates? Is it safe for a boss to take his secretary out to lunch to celebrate Secretary's Day?
The Supreme Court has given a little guidance to this issue, and formed the following criteria:
QUID PRO QUO: This is the classic "something for something" kind of harassment. Sleep with me, and I'll get you that raise. Sleep with me, and I'll get you that promotion. Don't sleep with me, and you're fired.
The biggest problem for the complainant in this type of harassment, is that the harasser almost NEVER does it in front of anyone, so it become a proof problem. Sometimes complainants try to get the harasser on tape. BE CAREFUL ABOUT THIS. Whether or not you are allowed to tape someone without his/her knowledge, depends on your state's anti-wire-tapping laws. In Pennsylvania, you may NOT tape someone without his/her consent. If you do, you may be liable for criminal penalties.
HOSTILE ENVIRONMENT: A hostile environment becomes actionable when the harassment is so severe or pervasive that it affects the employee's ability to do her job. It can include sexually explicit magazines, pictures, cartoons, comments, jokes, or more malevolent actions like physical touching, or even rape.
WHEN IS THE COMPANY RESPONSIBLE?: In 1998, the Supreme Court announced that if the harassed employee experienced a tangible job detriment as a result of the harassment, the company would always be liable for the actions of its supervisors or managers.
If the complainant did not actually suffer a tangible job detriment, then the company has one affirmative defense. It must have in place a formal, written policy. It must train and educate its staff on that policy. It must enforce that policy. AND - the complainant must unreasonably fail to avail herself of the protections of that policy. Even then, this is only an affirmative defense. If the claimant can prove that the company did have reason to know about the harassment, even though it had a policy, or that it did not implement or enforce the policy, it will still be liable.
DISCLAIMER: This website is intended to give general information on a very complicated area of the law. None of the information in this website is to be construed as legal advice; it is for informational purposes only. No information provided in this website, or communications made over its affiliated e-mail address, is to be considered as having created an attorney-client relationship. The materials provided in this website provide summaries only. Employment law cases are very fact-intensive and fact-sensitive. An evaluation of an actual case requires an extensive discussion of the specific facts and a thorough evaluation based on those facts and the applicable law.