What is Harassment and What is NOT?

What is Harassment and What is NOT?

By Thomas McKinney

What is Harassment and What is NOT?If you feel you are being harassed at work, it can be difficult to tell whether you are experiencing illegal harassment as defined by law, or if you feel hurt or offended by behavior that may be wrong, but is not illegal. The lines that cross from uncomfortable to illegal can be hard to see, but could mean the difference between a successful claim and one that can’t even be filed.

Laws Against Discrimination

All harassment cases are tried under the laws governing discrimination in the workplace. New Jersey’s Laws Against Discrimination (NJLAD) encompass all forms of harassment from sexual harassment and hostile work environment harassment, to discrimination harassment cases.

The common underlying factor in all successful harassment cases is that the plaintiff was able to prove that the harassment was repetitive or relentless in nature and interfered with the victim’s ability to perform his or her job.

Quid Pro Quo Sexual Harassment

Sexual Harassment cases fall under the NJLAD with respect to gender or sexual orientation as the protected class which cannot be discriminated against. Quid Pro Quo translates from Latin to mean “this for that.” This means that a Quid Pro Quo sexual harassment case is one in which a supervisor, boss or coworker offers a perk or promotion in exchange for sexual favors. An on-the-job benefit for sexual acts performed. The other form of Quid Pro Quo sexual harassment is when a negative employment action is threatened if the victim does not perform certain sexual acts. The trade is getting to keep one’s job in exchange for sexual favors.

Quid Pro Quo harassment can be overt when it comes in the form of explicit threats or promises, but the gray area exists in the cases where the threats or promises were implied and understood, but not spelled out.

Hostile Work Environment Sexual Harassment

The other form of sexual harassment is Hostile Work Environment sexual harassment. These cases are where an employee is made to feel demeaned, degraded, or threatened by a pattern of repeated, relentless behavior in the workplace.

The harassment could be in the form of verbal commentary, putting down one based on their gender. It could be lewd remarks about someone’s physical appearance, especially with focus on certain parts of their anatomy. It could also involve physical touching in the form of needless brushing up against someone in the workplace, or an inordinate amount of hugs, shoulder rubs or pats on the back. Harassment can also take the form of visual images that are displayed. Either sexually explicit or sexually suggestive photographs, screen savers, calendars and other displays can build a hostile workplace atmosphere, making employees feel uncomfortable.

Again, it can be difficult to tell what is and what is not sexual harassment because some single actions may not be as overt as others, but if they are pervasive and repetitive, it could build a bigger picture of a pattern of harassing behaviors.

Is THIS Sexual Harassment?

Let’s explore the differences between examples of harassing behavior to illustrate what is and is not sexual harassment.

Example 1:

A shift supervisor has been leering at you during afternoon shifts, making sexually suggestive comments about the way you look in your uniform. You ignore all advances and requests for dates, making him angry. The following week, the shift schedule has changed and you are working the late-night shifts when normally you had afternoons, making it possible to care for your children. When you bring up your dissatisfaction about the shifts, your supervisor replies that, “You should’ve given me what I wanted. Then I would’ve given you what you wanted.”

This IS Quid Pro Quo Sexual Harassment.

The supervisor punished you for not complying with his sexual requests for dates and other acts.

Example 2:

When a coworker was newly hired, she asked you out for coffee after work. You went once to be friendly, but quickly saw that she was interested in you as more than a friend, so you have declined all invitations since. Now, months later, she sees you in the break room and compliments your new sport jacket, asking if you’ve lost weight. You think she may be hitting on you again, and are unsure if you are being harassed.

This is NOT Sexual Harassment.

Although you are feeling a bit uncomfortable, your coworker has not threatened you or made sexually-charged remarks. Yes, she commented on your appearance, but in a way that could be taken as friendly and complimentary. Keep in mind, however, that if these encounters become so frequent and repetitive to the point where you are uncomfortable walking around the office, it could escalate to a hostile work environment sexual harassment case.

Discrimination Harassment

The NJLAD protect individuals who are members of certain protected classes against discrimination in the workplace. The law states that equal opportunity employers cannot discriminate based on race, color, religion, age, gender, genetic information, military service, marital or civil union status, nationality or ancestry. If you are being harassed at work because of any of these traits, you are being illegally harassed.

Example 3a:

You and a coworker are discussing current events in the news about a recent bombing in the city. Your coworker states that not all bombings are acts of terrorism, and it needs to be investigated before that can be determined. You disagree, citing an article you read stating that the bomber left a note claiming to be acting in the name of ISIS, as well as many other online acts linking him to terrorism. A third coworker comes up and angrily claims that your military history has clouded your judgement, making you a war monger who hates anyone who isn’t an American citizen. You feel angry and offended after this exchange.

This is NOT workplace harassment.

One isolated argument or incident cannot build a case of harassment. Your argument could have been about only your political views and was not necessarily only about your military service. A single disagreement in the workplace is not enough to make a claim of discrimination or harassment.

Example 3b:

Over the course of the next few months, this same third coworker takes every opportunity to put down the military, lumping all who serve into the same category. She calls you names like “Rambo,” “baby killer,” and “war monger” repeatedly. You apply for a promotion out of your department to get away from her, only to find out that she has written to your potential new supervisor making false claims about your behavior at work and stating that you are frequently absent for reserve training. You fail to get this promotion out of your department because of her damaging reference.

This IS workplace harassment.

Not only were you made to feel uncomfortable by her repetitive attacks against you, but you were being attacked based on your membership in a protected class under the NJLAD. Furthermore, you were refused a promotion based on this woman’s harassment of and false claims against you and your work history.

Example 4:

You begin working as a receptionist for a new company, answering phone calls and greeting clients as they come in for meetings. One particular client checks in and you respond that his representative will be out shortly to meet him, so he can sit down and wait to be seen. He begins complaining about your accent, claiming that he can’t understand a word you are saying, so you slowly, clearly repeat yourself. Again, he complains, more loudly, until his representative comes to meet him and they go into the conference room. The next time he enters, he greets you with, “They haven’t hired someone who speaks English yet?!” and turns to the other clients in the waiting room to complain about how he, “just wants to speak to an American!” You deal with incidents like this each time he enters the office, making sure to speak clearly enough to be understood, keeping calm in the face of such disrespect. You let your boss know about this client’s behavior. Other clients have noticed and mentioned it to their representatives, too. Finally, you ask that someone else be at the front desk to deal with this particular client. Your boss tells you it is your job and either you continue to deal with this client or you will lose your job.

This IS workplace harassment.

You are being attacked for your ethnicity in the workplace. Your verbal communication is clear enough for everyone to understand you, but this client continues to harass you. Your boss and other coworkers do not address the issue in any way because they don’t want to lose his business, yet they find no reasonable alternative to relieve you from dealing with him. You cannot perform your duties at work under these circumstances.

If You Experience Harassment at Work, Contact an Employment Law Attorney

Our experienced NJ Sexual Harassment attorneys can help you fight against sexual harassment and discrimination in the workplace. No one should have their livelihood threatened by illegal harassment. Contact our offices to discuss your situation with a skilled harassment lawyer. Your initial consultation is free, and we will help you determine your best course of legal action to ensure your right to work, free from discrimination and harassment.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.