Right to Work Law

The Elements of Harassment

An individual employee bringing a claim for harassment at the workplace must show five elements:

(1) they belong to a protected class (such as age, disability, national origin, sex/gender, race/color, religion, or sexual orientation);

(2) they were subject to unwelcome harassment;

(3) the harassment was based on their membership in a protected class;

(4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of the employment; and

(5) there is a basis for holding the employer liable for the harassment.

Harassment by a Supervisor versus Co-Worker

Pinning liability on the employer depends on whether the harasser was the supervisor or a co-worker. If the alleged harasser was the supervisor and the employee suffered a tangible employment action, then the employer is automatically vicariously liable. A tangible employment action is a significant change in employment status (terminated, demoted, or given an undesirable assignment).

If there was no tangible employment action by the supervisor, then the employer can avoid liability for harassment if it shows that: 1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities the employer provided.

However, if the alleged harasser was a co-worker (non-supervisor), then the employer is only liable if it was negligent. The employer is negligent if it knew or should have known of the harassing conduct but failed to take prompt remedial action. A victim of co-worker harassment must show either actual knowledge on the part of the employer or conduct sufficiently severe and pervasive as to constitute constructive knowledge to the employer.

Sexual Harassment and a Hostile Work Environment

Sexual harassment is a well-known cause of action, but it is not the only claim for harassment. Unwelcome conduct based on any protected class can be a claim for harassment. The elements above apply to sex/gender based harassment as well as the other classes protected by law.

Finally, a hostile work environment has the same meaning as “harassment” in the employment law context so there is no need to focus on one or the other as they are interchangeable.

The Montone Law Firm, P.A. handles claims involving harassment and can provide a free case evaluation if you need assistance.  You can call 407-565-8228 or click here to get started.     

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