An employee feels he is being “harassed” by a male co-worker. Can it be unlawful harassment if the alleged behavior has nothing to do with sexual interest in the employee?
Quick Answer
Yes. Under federal law, illegal harassment may be based on race, color, religion, sex, national origin, advanced age, disability or genetic information.
Legal Perspective
Pierson Ferdinand LLP
Washington, District of Colombia
Yes. It could be if the harassment is based on or because of an employee’s legally protected characteristic such as race, religion, age, sex, sexual orientation, transgender status, disability or another protected class under federal, state, or local law, says employment lawyer Amy Epstein Gluck (amy.epsteingluck@fisherbroyles.com), a partner at FisherBroyles, LLP and the firm’s Employment Counsel.
It’s possible that the instigator’s actions could be creating a hostile work environment (a form of potentially unlawful harassment) for the other employee based on their inclusion in one of these protected classes.
To constitute a hostile work environment under federal law, conduct and/or comments must be based on a protected characteristic i.e., the harassment must be because of a person’s gender (or race, disability, age, etc.), and must be severe or pervasive enough to create an environment that a reasonable person would consider intimidating, hostile, offensive or abusive.
Relevant Case Law
Watson v. CEVA Logistics U.S., Inc.
Jones v. UPS Ground Freight
Oncale v. Sundowner Offshore Services, Inc.
HR Insight
Country Club Mortgage
Visalia, California
Harassment is harassment, HR Generalist Sherry Carson points out. It does not have to be of a sexual nature to be unlawful.
This issue should be investigated immediately and then addressed according to the findings. If true, the offending employee should be disciplined according to company policy.
Harassment training is required annually or every two years depending on your state, so companies should adopt a no-tolerance policy for harassment. We have an obligation to our employees to provide a safe and productive work environment.
United Way of Metropolitan Dallas
Dallas, Texas
Yes, unlawful harassment can be based on age, race and religion or disability as well, says Candace Barnes, Senior VP of HR.
Broadie's Aircraft
Fort Worth, Texas
Yes, absolutely. All of our employees must acknowledge receipt of our non-harassment policy upon hire.
This policy is separate from our sexual harassment policy and includes protection from harassment on the basis of race, color, national origin, disability, religion, marital status, veteran status, sexual orientation, age, or any other type of harassment that may cause a hostile work environment.
The Cost of Noncompliance
Retaliation lawsuit: Jury orders FedEx to pay more than $5M to fired worker
Who was involved: FedEx Corporate Services, Inc., an e-commerce services transportation company, and a Black employee who worked in Texas.
What happened: According to the employee’s lawsuit, she was asked to take a demotion by a white supervisor. When the employee declined, she claimed she was subjected to harassment that was “constant, obscene, obnoxious, [and] shocking to the conscience of the ordinary person.” After she complained to HR, she was fired. She then filed a lawsuit alleging race discrimination in violation of Title VII and retaliation in violation of Section 1981. Unlike Title VII, Section 1981 “contains no damages cap,” according to Antheil, Maslow and MacMinn, LLP.
Result: A Texas jury rejected the race discrimination claim, but it sided with the former employee on the retaliation claim, awarding her:
- $170,000 for past pain and suffering.
- $1.04 million for future pain and suffering.
- $3.65 million in punitive damages.
Info: Jury verdict in Harris v. FedEx., 10/25/22.
Applebee’s forks over $100K to end anti-gay and racial harassment Title VII claims
Who was involved: A Florida Applebee’s Neighborhood Bar & Grill restaurant and a former employee who is Black and gay.
What happened: The EEOC filed a Title VII discrimination and retaliation lawsuit on behalf of the alleged victim. The suit claimed he was regularly harassed by two co-workers who repeatedly used gay slurs and racial slurs in his presence. And one of the harassers wore Confederate flag apparel to work. As the harassment continued, the victim reported the problem to management – but “no action was taken by the employer,” according to the EEOC. Instead, he was allegedly told to “ignore it.” After he reported his complaint to managers, his work hours were cut and he was forced to quit, the EEOC said.
Result: Applebee’s has agreed to pay $100,000 to settle the lawsuit. Under the consent decree, the company must also:
- provide specialized training on sexual orientation and race-based discrimination to HR officers and managers to ensure they’re aware of their obligations to: 1) help prevent workplace discrimination, and 2) properly address employee complaints
- appoint an internal consent decree monitor to review complaints of sexual orientation and race-based harassment, and
- provide the EEOC with reports of harassment complaints as well as the action steps that the company took in response to the complaints.
Jury awards Black fitness instructor more than $11M in damages — plus back pay
Who was involved: Equinox Holdings, Inc., a luxury gym chain, and a Black fitness instructor who was fired from her job at a location in New York City.
What happened: The former employee’s lawsuit alleged a hostile work environment and unlawful termination in violation of Title VII and New York State Human Rights Law. Specifically, she alleged the company ignored her complaints about a co-worker’s racist and sexually inappropriate comments. The lawsuit alleged that the co-worker made vulgar comments about Black women’s bodies, used racially offensive slurs and encouraged clients to work with white personal trainers. Rather than dealing with the co-worker’s misconduct, the company allegedly retaliated against the employee by firing her for her purported “lateness.” After a New York federal court refused to dismiss the claims, the case went before a Manhattan jury.
Result: The jury sided with the former employee, awarding:
- $1.25 million in compensatory damages, and
- $10 million in punitive damages.
The employee will also receive $16,000 in economic damages representing back pay, which was previously agreed to by the parties.
Info: Jury verdict in Robynn Europe v. Equinox Holdings, Inc., 5/16/23.
Key Takeaways
- Federal law bans harassment based on a number of protected characteristics in addition to sex.
- Illegal harassment is unwelcome conduct based on a characteristic that is protected by law.
- Petty slights and annoyances are not illegal harassment.
- Isolated instances are not illegal harassment unless they are extremely severe.
- Harassment becomes illegal when it is a condition of employment or when it is so severe or pervasive that it creates a work environment that reasonable people would consider intimidating, hostile or offensive.
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