Harassment and Hostile Work Environment

Harassment is a form of discrimination unlawful under many of the anti-discrimination statutes outlined here. Harassment claims are often referred to as claims for a hostile work environment. Employment laws generally prohibit workplace harassment on the basis of race, color, sex (including same-sex harassment and harassment based on an employee’s failure to conform to traditional gender stereotypes), pregnancy, national origin, religion, age, genetic information, and disability, as well as harassment in retaliation for an employee’s opposition to discriminatory employment practices, as detailed here. Moeller Barbaree’s Atlanta lawyers routinely litigate many different types of harassment claims and advise employers on both preventing harassment in the workplace and providing employees with multiple avenues for seeking relief to the extent they experience harassment.

Unlawful harassment, such as racially motivated conduct like race-based jokes, slurs, or graffiti, may create what the law refers to as a hostile work environment. For example, to prove a claim of hostile work environment harassment based on sex, an employee must show:

  • She was subjected to offensive acts or statements about sex, even if they were not specifically directed at her;
  • The offensive acts or comments were unwelcome and not invited by her own acts or statements;
  • The conduct was so severe or pervasive that it materially impacted the terms and conditions of her employment; and
  • Both she and any reasonable person would have felt the actions or statements materially altered the terms and condition of employment.

To determine whether harassment is “severe and pervasive” courts consider how often the conduct occurred, its severity, whether it was physically or psychologically threatening or humiliating, and whether it unreasonably interfered with the employee’s work performance.

An employer has a defense to hostile work environment claims where the employer can show (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior in the workplace and (2) that the employee unreasonably failed to take advantage of the employer’s preventive or corrective measures provided to avoid harm. Moeller Barbaree’s Atlanta attorneys have advised employers that they cannot rely on this defense unless the employer can show that it had an explicit policy against harassment in the workplace, that it communicated that policy to its employees, and that it provided a reasonable process for making a complaint of harassment.

In addition to hostile work environment, the law recognizes a claim of harassment that is based on what’s called a tangible employment action, such as harassment that causes the employee monetary loss or significantly changes his workload or work assignments. A common example of this type of harassment is when a manager threatens an employee or promises an employee some benefit in exchange for sex acts. Employers are strictly liable for harassing conduct of managers that threatens an employee’s job and results in termination, demotion, or reassignment, or that promises some type of job benefit.

Even employees who are not in a protected category can pursue claims where harassment in the workplace is based on the employee’s association with someone who is in a protected category or is in retaliation for raising a concern about unlawful discrimination in the workplace. For example, a Caucasian male could bring a claim of racial harassment if he could show that he was subject to a hostile work environment because of his association with (or relationship with) an African American or because he had biracial children. Similarly, a Christian employee could claim associational harassment where coworkers harassed her because she was married to a Muslim male.

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If you need more information about preventing harassment in the workplace, or pursuing or defending against a claim of harassment, please contact Moeller Barbaree’s Atlanta attorneys for a free consultation at 404-748-9122, or use our convenient email form.

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