Preventing Workplace Harassment, Discrimination, and Retaliation

H ARASSMENT

Section 5

There are two types of harassment: Hostile work environment and quid pro quo.

A. H OSTILE W ORK E NVIRONMENT H ARASSMENT Anti-discrimination laws protect employees from discriminatory work environments. 84 But whether a work environment rises to the level of being unlawfully hostile or abusive requires a case-by-case analysis of the following:

 The frequency of the harassing conduct;

 The severity of the harassing conduct;

 Whether the harassing conduct is physically threatening or humiliating;

 Whether the harassing conduct is unwelcome;

 Whether the harassing conduct unreasonably interferes with an employee’s work performance or alters other conditions of employment so as to make it more difficult to do the job; and  Whether a member of the protected class would consider the harassment hostile and offensive, i.e., the “reasonable victim” standard. 85

Conduct amounting to harassment may include:

 Speech, such as epithets, derogatory comments, slurs, jokes, or lewd propositions; 86  Physical acts, such as staring, offensively touching another or one’s self, impeding or blocking movement, or any physical interference with normal movement; 87

 Visual insults, such as derogatory posters, cartoons, or drawings;

Intimidation, ridicule, and insult; 88

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 Unwanted sexual advances, requests for sexual favors, or other acts of a sexual nature where submission is made a term or condition of employment or where submission to or rejection of the conduct is used as a basis for employment decisions, or where the conduct is intended to or actually does unreasonably interfere with an individual’s work performance or creates an intimidating, hostile, or offensive working environment; 89 or  Widespread supervisor favoritism toward select subordinates that communicates a message that the only way to advance is to have close friendships or sex with supervisors. 90

To establish a hostile work environment harassment claim, an individual must show that: (1) the individual was subjected to verbal, visual, or physical conduct of a harassing nature because of a

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 21