Harassment and discrimination are unacceptable in any situation, but particularly harmful in workplace settings. It can be difficult to know when a situation has escalated to become a case of harassment or discrimination, and it can be even harder to tell harassment and discrimination apart.
There are some important guidelines to consider, however, that can help you recognize both problems and tell them apart.
Employer Harassment vs. Employer Discrimination?
Before you can tell harassment and discrimination apart, you need to be familiar with the definitions of both.
The EEOC provides a good working definition of harassment: “Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”
It is also considered employer harassment if an employee is expected to put up with offensive or abusive behaviors as a condition of their employment, or if the behavior creates an intimidating, hostile, or abusive work environment.
Employees reporting harassment are also protected under anti-discrimination laws that legally prohibit retaliation from employers.
Harassment is a type of discrimination, but you do not have to be a member of a protected group to experience workplace harassment. For instance, if your boss was constantly pressuring you to put in extra hours, and threatening to fire you if you did not, that could be considered an abusive work situation, particularly if the extra time went unpaid.
Employer harassment can also occur based on physical characteristics that are not protected by any specific anti-discrimination law. As an example, lewd comments, inappropriate touching, or appearance-based insults are all forms of harassment regardless of the identity of the target.
On the other hand, employer discrimination can seem outwardly very similar, but while harassment is an individual matter, employer discrimination is typically directed at a group of people or a particular protected identity.
Protected identities include race, skin color, national origin, gender, disability, religion, age, or marital status. Pregnancy is also protected under anti-discrimination laws.
For instance, if a plumbing company places an age barrier on their new apprenticeships, even unofficially, that is a form of age discrimination.
It is also discriminatory for employers to bar certain employees from benefits programs. As an example, disabled employees cannot be barred from participating in employee health insurance programs or denied vacation time.
Some Questions to Consider
When you are confronted with a possible case of harassment or employer discrimination, it is important to take appropriate steps to report the issue, but it can be hard to tell what you are reporting.
These questions will help guide you as you determine if you are dealing with harassment or discrimination.
Is this behavior directed at one person, or a group?
This question is really important because discrimination directed at one person may fall under harassment, even if it is directed at them based on a protected identity.
For instance: Mark is consistently insulting Brandon, often using racial slurs, but does not insult Talia, even though Brandon and Talia are the same race. In this case, because the behavior is persistent and abusive, Brandon is being harassed by Mark, but it may be dealt with as harassment and not discrimination since Brandon is the only target.
Employer discrimination is usually less interpersonal. An employer may be found discriminatory if they present certain characteristics as preferred in hiring materials, refuse to promote people based on a protected identity, or penalize employees for parenthood, disability, or age.
Is the behavior pervasive, or is it mostly one or two people causing problems?
This question focuses on what is at the root of the issue. Especially in large corporations, it is important to determine if the discriminatory or abusive behavior is coming from one or two people, or if it is embedded into culture and policy.
While this may not directly determine whether a particular behavior is discrimination or harassment, it does help determine what steps need to be taken.
What You Can Do
If you notice harassment or discrimination, either one, you have a few options to handle the situation.
It is important to remember that you can report discrimination and harassment even if you are not one of the people affected. It can be hard to speak up if you are being targeted already, so if you notice inappropriate behavior or policies you should report, doing so will make your workplace a happier, safer place for everyone in the long-term.
One good option may be speaking with your supervisor or the supervisor of the employees involved. If a supervisor is the problem, you can try speaking to their immediate superior.
Larger workplaces often also employ at least one HR representative, and they are a good resource if you are concerned about reporting to a supervisor or another member of the internal hierarchies at work.
In almost all cases it is required that a workplace at least have the opportunity to address a situation of harassment or discrimination before it can escalate to a legal situation. There are exceptions of course, especially in extreme cases.
If you are concerned about harassment or discrimination in your workplace or want to learn more, you should always feel free to reach out to the employment law attorneys at The Brown Firm. We will be happy to help your case move forward or consult with you on what you should expect next.
