Fedweek Legal

Harassment is hostility from a supervisor, coworker, and/or subordinate which affects the terms, privileges, and/or conditions of a person’s employment. Harassment is illegal if and only if the supervisor, coworker, and/or subordinate engages in hostility because of the employee’s sex, race, religion, age, national origin, disability, and/or prior EEO activity. It is not enough for the employee to show that he/she was treated poorly. In order for the treatment to constitute unlawful harassment, the employee must show that the treatment was discriminatory, in other words because of the employee’s membership in one or more of the protected classes above. Furthermore, the employee must show that the hostility was so severe and/or pervasive that it impacted his or her ability to work. In the case of hostility because of prior EEO activity, the employee need only show that the hostility could reasonably deter him or her from participating in the EEO process.

An employee demonstrates that harassment is discriminatory by showing that persons outside of his/her class were not exposed to the hostility by the supervisor, coworker, and/or subordinate. Direct evidence of discriminatory harassment (e.g., the utterance of sexist remarks or racial epithets) is the easiest, yet most unusual way of proving discriminatory harassment. The most common way of proving harassment is through circumstantial evidence (e.g., the testimony of persons outside of the employee’s class that they did not experience the hostility or the testimony of persons within the employee’s class that they experienced the hostility but did not observe nonmembers of the class experiencing the hostility).

One type of harassment-sexual harassment-is unlike hostile work environment harassment because of age, national origin, race, religion, disability, and/or prior EEO activity. Furthermore, sexual harassment should not be confused with hostile work environment harassment because of sex. Sexual harassment is the exposure to the unwelcomed advances of another employee. Such harassment is “because of sex” in and of itself, regardless of whether other women or men in the workplace are not experiencing the unwelcomed advances.

The rational underlying the theory of sexual harassment is that were it not for the employee’s particular gender, the offender would not direct his or her unwelcomed sexual interest towards that employee. On the other hand, hostile work environment harassment because of sex need not involve an element of unwelcomed sexual attention and is instead proven by showing that members of one sex were treated more harshly than members of another. Keep in mind that if the offender is creating a hostile work environment for persons of all sexes, races, religions, etc., the offender’s conduct might be harassment, but it is not discriminatory.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **