Is That Employee Just Rude - or Breaking the Law?

There are no laws against acting like a horse's rear-end at work, but your employees do have the right to show up to a respectful and productive work environment. The problem? Many employers struggle to understand the line between rudeness and actual harassment as defined by law.

What is Harassment?

According to the Equal Employment Opportunity Commission harassment is defined as:

Unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Some forms of harassment are easy to spot. If a manager tells an employee their continued employment status is contingent on engaging in sexual activity, this is clearly quid pro quo sexual harassment. But when an employee feels uncomfortable with a co-worker's discriminatory behavior, the lines often seem blurrier. However, to meet the legal standard for harassment, the hostile behavior must be unwelcome, pervasive, and the offender must be made aware their behaviors are not welcome.

Disrespectful Behavior

There are other forms of disrespectful behavior that do not meet the legal standard for harassment but do contribute to low morale and a hostile environment. This can include malicious gossip, threats, intimidation, unwelcome use of profanity, lack of consideration for a colleague's privacy or personal belongings, attacking their viewpoints and more. Bullying behavior is not always considered harassment, but it is often a stepping stone to harassment.

Understanding the Line Between Disrespect and Harassment

The lines are not always clear. But if you keep the definition of harassment in mind, you can identify behaviors that could land someone in legal trouble. For example, say employee Frank tells a racist joke to colleague David. If David states clearly that the joke was unwelcome and he does not condone that behavior, and Frank never makes another offensive remark, harassment has not occurred. However, if Frank doubles down and makes a point to continue to make racist remarks to or around David, Frank has crossed a legally defined line.

There are some very important facts about harassment that employers and employees alike should understand:

  • Men can harass women or men.
  • Women can harass men or women.
  • Harassing behavior does not have to be directed at a specific person.
  • The victim does not have to be the person harassed, but can be anyone affected by the behavior.
  • Offenders can be supervisors, peers, supervisees or even non-employees.
  • The conduct does not have to be intentional to be considered harassment.
  • Harassment can be verbal, nonverbal, written or physical.
  • Age-related harassment is the fastest-growing form in U.S. workplaces.

Employer Liability for Harassment

Every business should take harassment seriously, because employers can be held liable for nearly all forms of harassment. According to the EEOC, employers are automatically liable for, "harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages."

Employers are also held liable for harassment by non-supervisory employees and non-employees over whom it has control. This can include independent contractors and even customers on-site if the employer knew about the harassment and failed to take appropriate corrective action.

If a supervisor causes a hostile work environment, the employer won't be held liable if they can prove they reasonably tried to prevent and correct the behavior, and they can also prove the employee failed to take advantage of or participate in opportunities provided by the employer to correct the behavior.

How to Handle Harassment in Your Workplace

First and foremost, prevention is the most effective means of eliminating harassment on the job. Employers should clearly define what harassment is for their employees through anti-harassment training. Employers should also:

  • Create a clear reporting process. Be clear on where employees should go if they feel harassed. This is most often human resources. Be sure that a neutral third party handles each claim.
  • Take decisive, consistent action. Every complaint should be investigated. This shows a commitment to ending harassment and proves objectivity in handling claims.
  • Foster respect and zero tolerance for harassment. Treat vulnerable team members as respected colleagues, call out double standards, and increase training and education to encourage cooperation and mutual respect.

The best thing employers can do is foster a culture where employees feel free to raise concerns about potentially harassing behavior, where they also feel their concerns will be heard, and where it is understood that true harassment will not be tolerated.

That's not to say if disrespectful behavior does not meet the legal standard of harassment the claim should be ignored. Policies for managing bullying and disrespectful behavior should also be clearly outlined. Often, harassment can be nipped in the bud if an employee feels empowered to report disrespectful conduct before it escalates.

Disclaimer: Please note that the information provided in this piece, while accurate, is not a substitute for legal advice. It was created for guidance and information sharing only. Individuals and businesses should seek legal counsel or assistance from federal, state or local resources for legal advice on harassment.

Reprinted with permission courtesy of
Johnson & Hill