What is Harassment?

Harassment

Help us create a harassment-free work environment. Harassment refers to any form of verbal, visual, or physical conduct that could create or contribute to an intimidating, offensive, hostile working environment. Marie quit her job. She didn’t feel safe at her workplace anymore, not with her colleague’s constant flirting and lewd comments. When Jose’s colleagues discovered what religion he practiced, they stopped inviting him to lunch and he’s overheard some colleagues say that they don’t trust him and no longer wish to work with him. Abdul’s colleagues whisper about his personal life behind his back and some colleagues have started to ignore him and exclude him from meetings and company events.

This course will help you to recognize situations that may involve harassment and identify what to do when you experience or witness these situations.

UK Law (UK ONLY SCREEN)
The Equality Act of 2010 categorizes harassment as a form of discrimination. As a result, harassment is unlawful under the 2010 Act. Harassment is unwanted behavior which a person finds offensive or which intimidates or humiliates a person. Harassment can occur on its own or alongside other forms of discrimination. Under the Equality Act, harassment is illegal if it’s related to, or because of, one of these factors:

  •  Age
  •  Disability
  •  Gender reassignment
  •  Marriage and civil partnership
  •  Pregnancy and maternity
  •  Race
  •  Religion or belief
  •  Sex
  •  Sexual orientation
    Note that the concept of age discrimination is fundamentally different in the UK than it is in the US. US age discrimination laws only protect those who are 40 or older, while UK laws protect groups of all ages. If you feel that you have been the victim of harassment in your workplace, you should report this to your manager or a representative from HR.

State Laws (US ONLY SCREEN)
Many states, and some cities, have enacted laws, broader than federal laws, to raise awareness and expand protections against discrimination and harassment in their workplaces. Some have also enacted laws around the level of harassment training that employees are required to take. Let’s look at these.

California
California State Law AB1825 came into effect in 2007 and mandates that all employers with 50 or more employees provide two hours of sexual harassment training once every two years for all staff in a supervisory position. When an employee is promoted to a supervisory position, they must receive the sexual harassment training within six months, and then every two years thereafter.

Connecticut
In 1992, Connecticut made sexual harassment training mandatory for anyone at a supervisory level for employers with 50 or more employees. State law mandates that anyone in a supervisory position must receive two hours of sexual harassment training within six months of assuming their supervisory role.

Delaware
In August 2018, Delaware signed HB 360 into law. The law made sexual harassment training mandatory for employers with at least 50 employees. All existing employees must receive training within one year of January 1st 2019, and then receive training every two years thereafter. The law does not specify the duration of the training. If you are ever the victim of harassment, or witness an instance of harassment, you can find out who to report to here. You can also find out the details of our complaint process here.

Your External Rights
Under Delaware legislation, victims may file a charge with the Delaware Department of Labor (DDOL). Charges may be filed in person at the DDOL office in Dover or Wilmington. Charges must be filled with the DDOL within 300 days of the date the alleged offence taking place and charges must be filed with the DDOL before a private lawsuit may be filed in court. Employees may also file charges with the federal EEOC anytime within 300 days from the alleged offence, if they so wish.

Maine
In 1991, Maine introduced sexual harassment legislation that mandates that employers with 15 or more employees must provide sexual harassment training to ALL employees. New employees must receive their training within one year of taking up their position. The law does not specify the duration of the training.

New York State and City Laws (US ONLY SCREEN) 
In the wake of the #MeToo movement, both New York City and New York State expanded their protections against sexual harassment. Let’s look at how they did this.

New York State
As of April 2018, New York State discrimination law has been extended to protect non-employees who provide contract services, such as consultants, contractors, subcontractors, vendors, and unpaid interns. Employers will be held liable if they knew or should have known about sexual harassment and failed to address it immediately and appropriately.

Effective July 2018, employers are prohibited from requiring non-disclosure provisions in settlement agreements of sexual harassment claims, unless the person bringing the claim expressly consents to doing so.

By October 2018, all companies must have a specific policy against sexual harassment and must provide annual anti-harassment training to all employees covering specific topics outlined by the State, including how and where to bring complaints.

New York State – Additional Protections and Remedies

Under New York State law, victims of sexual harassment may file complaints with the New York State Division of Human Rights (DHR) or file a lawsuit directly in the New York State Supreme Court. You do not need an attorney to file a complaint with the DHR, and complaints may be filed with the DHR any time within one year of the alleged discrimination.

This differs from most other states, where victims must file an administrative claim with the State before they can file a lawsuit in court. Employees in New York may also file complaints with the federal EEOC anytime within 300 days from the alleged discrimination, if they so wish. If a complaint is not filed at the DHR, complainants can sue directly in state court under the Human Rights Law within three years of the alleged discrimination. An individual may not file with the DHR if they have already filed a Human Rights Law complaint in state court. Several localities have laws in place to protect individuals from sexual harassment and discrimination. To find out if such a law exists in your locality, contact your county, city, or town. In some cases, harassment may constitute a crime if it involves actions like physical touching, coerced physical confinement, or coerced sex acts. In these cases, you should also contact the local police department.

New York City
In tandem with the State’s legislation, the New York City Council enacted the “Stop Sexual Harassment in NYC Act,” which mandates that the annual anti-harassment training must be “interactive” for all New York City employers with 15 or more employees. This legislation also extended the statute of limitations from one to three years for gender-based harassment claims brought to the City’s Commission on Human Rights.  All employers in New York City are required to comply with both the state and city laws and it is important to remember that under state and federal law, sexual harassment is also a form of discrimination.

Your External Rights
Under New York city legislation, victims of sexual harassment may file complaints with the New York City Commission on Human Rights, New York State Division of Human Rights, or the EEOC. Remember, behavior does not need to be a violation of law, in order to be in violation of company policy.

Complaint Process
If you are ever the victim of harassment, or witness an instance of harassment, you can find out who to report to here. Remember, behavior does not need to be a violation of law, in order to be in violation of company policy.
You can also find out the details of our complaint process here. All complaints will be treated with confidentiality and you can rest assured that retaliation for any complaints filed is strictly forbidden under law and company policy.

The federal Canadian Human Rights Act states that it is illegal to discriminate against people or treat them unfairly based

This means that general acts of bullying that are humiliating, offensive, demeaning, intimidating, etc. may be considered harassment even if they are not based on one of these protected characteristics. In Ontario, sexual harassment includes any harassing behavior related to an individual’s sex, sexual orientation, gender identity or gender expression, as well as sexual solicitation. Solicitation is similar to “quid pro quo” harassment in the US, i.e. it is harassment based on the request for sexual favors in return for career advancement, positive reviews, etc.

Quebec
Quebec has a number of laws aimed at protecting employees from workplace harassment and discrimination. These include:

      •  Act Respecting Occupational Health & Safety
      •  Act Respecting Labor Standards
      •  Civil Code of Quebec
      • Quebec Charter of Human Rights & Freedoms

The Act Respecting Labor Standards provides protection from psychological harassment for the majority of workers in Quebec. Some workers are excluded depending on their role, for example federal employees and self-employed workers. The Act Respecting Labor Standards defines psychological harassment as “any vexatious behavior in the form of repeated and hostile or unwanted
conduct, verbal comments, actions or gestures, that affects an employee’s dignity or psychological or physical integrity and that results in a harmful work environment for the employee. A single serious incidence of such behavior that has a lasting harmful effect on an employee may also constitute psychological harassment.”

 When Is Harassment Considered Discrimination?
It can sometimes be difficult to determine when harassment becomes discrimination as this can be a somewhat confusing topic. We’ve tried to simplify it here by looking at what harassment includes and when harassment becomes actionable.

What Does Harassment Include?
Depending on the circumstances, harassment may include conduct such as stereotyped or demeaning remarks or gestures; bullying; or the display or circulation, whether in writing or electronically, of materials or pictures offensive to persons because of their race, religion, creed, color, citizenship, national origin, age, sex, gender identity/expression, sexual orientation, marital status, disability, genetic information, domestic violence victim status, criminal history, or any other legally protected basis, in accordance with applicable laws.

When Does Harassment Become Actionable?

Harassment is actionable as discrimination in violation of the law when the conduct becomes “so severe or pervasive as to alter the conditions of the employee’s employment and create an abusive working environment.”

 A Drunken Proposal
I just got back from a work conference with my team and on the last night we all got a few drinks at the hotel bar. Towards the end of the night, my boss Amir leaned in and whispered “That top is hot. Can I get a closer look in my room?” I don’t know if he was joking or was drunk, but I just felt really uncomfortable. Imani and her team attend a conference and afterwards have a few drinks at the hotel bar. Her boss Amir whispers in Imani’s ear, “Your top is hot. Can I get a closer look in my room?” Imani asks if this could be considered sexual harassment.

What do you think?

  •  Yes; it could make her uncomfortable and she could feel under pressure to engage in sexual activity with Amir as he is her boss.
  •  No; the team are out having a good time and Amir is just having a bit of fun with her.
  •  No; Amir’s comment doesn’t quite qualify as harassment, even though it may be considered crude.
  •  No; as they are not on work premises, Amir’s conduct cannot be considered workplace harassment.

Thanks for helping Imani
This definitely could be considered sexual harassment and Imani would be within her rights to report the incident. The fact that Imani and Amir are not physically on work premises does not matter. Amir is still an employee of the company and, therefore, is subject to the same policies and procedures outside of work. Remember, just because an employee is not at work, they may not engage in inappropriate conduct that would otherwise be impermissible in the workplace itself. This type of after-hours behavior has the same effect as if it had occurred on work premises during regular work hours. If you witness or experience a situation like this, you can find out who you can report it to here.

Imani and the New Team Member
Hamid is the new guy on the team. When Bob first introduced Hamid at his first team meeting, he made a joke about Hamid’s nationality. I thought okay this will probably just be a one-off, but it seems like every week Bob has made jokes about Hamid’s nationality. Hamid is the newest member of Imani’s team. In his first team meeting, their manager makes a joke about Hamid’s nationality when introducing him. On numerous occasions over the next few months Imani overhears her manager making jokes at Hamid’s expense based on his nationality. Imani asks you if you think this is harassment.

What should you tell her?

  •  This could be harassment. It all depends on how Hamid perceives the jokes. If he is offended, this could be considered harassment.
  •  No, this definitely isn’t harassment. Imani’s manager is only joking around in an effort to help Hamid integrate into the team.
  •  Yes, this is definitely harassment and Imani needs to report it immediately. Remember…

The main factors to consider, when trying to determine if someone’s jokes could be considered harassment, are whether or not the person making the jokes intends them to be hurtful and whether or not the target perceives the jokes as hurtful. Remember, even if someone doesn’t intend any harm, if the target of the jokes, or those who witness them, are hurt or offended by the jokes and
this is happening on a regular basis, this could create a hostile work environment for them and could be considered harassment.

Funny Emails?
Imani’s colleague Jill loves to send emails to their group that she finds funny. Sometimes the images and content in the emails are quite risqué, and sometimes include jokes on religion and sexuality. The jokes are never aimed at any specific members of Imani’s team. Imani is worried her friend’s emails may be considered harassment.

What should you tell her?

  •  Maybe, if any of the recipients find the email content offensive; and as Jill sends these type of emails regularly, this could contribute to a hostile work environment.
  •  No, as it’s a group email and the jokes aren’t aimed at anyone in the team, this couldn’t be considered harassment.
  •  Yes, this is definitely harassment as it’s never okay to tell jokes about religion or sexuality.

Remember…
Employees shouldn’t use their company email account to send risqué jokes to colleagues. A constant stream of emails with jokes on religion and sexuality risk offending some colleagues. Remember, jokes that offend some colleagues could contribute to an offensive, hostile work environment.

 Dating Advice
Imani overhears Lee offering dating advice to his colleague Carlos. “Wear that new shirt you wore last week. You look great in it!”
Carlos responds, “Thanks, I love that shirt, too.”

What should Imani do in this situation?

  • Nothing. This is a friendly conversation and doesn’t constitute harassment.
  •  Report what she heard to her line manager as this could be considered harassment.
  •  Have a quiet word with Lee and tell him that this sort of conversation is unacceptable.

Thanks for helping Imani
Remember that intent and perception are key to determining if a statement could be considered harassment. If either Lee or Carlos voiced discomfort with the situation, Imani might need to reconsider, but there is no red flag for harassment here.

It’s important that you:

  • Understand what can constitute harassment in the workplace.
  •  Know when a person is being harassed.
  •  Know what to do if you are the victim, or if you witness harassment.

This is content from the Anti Harassment and Discrimination course.

Download our Anti Harassment and Discrimination booklet.
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