Fedweek Legal

Frequently, employees feel that they are placed in a harassing workplace environment. Sometimes the harassment comes from a supervisor, sometimes from a co-worker or, even, a subordinate employee. There are two types of work-place harassment that are prohibited by law. One prohibited type of harassment is when an employee is punished for not succumbing to sexual advances; the other is when an employee is subjected to hostilities that affect the terms and conditions of their employment. In the second case, the employee must show that he or she is in a hostile work environment because of his or her race, sex, age, national origin, religion, or disability, or because they have engaged in the EEO process.

Not all workplace harassment is illegal. The law does not guarantee an employee a good or supportive supervisor. Some managers supervise through intimidation, threats or fear. Although such management methods may be objectionable on moral or good-management grounds, they are not illegal. If a manager acts this way toward everyone in the office, then it is unlikely that the manager is breaking the law. However, if the manager applies these methods to only one group people (for example, foreign-born workers, women, those with disabilities), then the manager is engaging in disparate treatment that may be a violation of law.

To be illegal under any of the anti-discrimination laws, the treatment must so pervasive that it alters the terms and conditions of employment. The harassment must affect the employee’s ability to perform or function in the job. For example, the hostile work environment might force the employee to take numerous breaks from the office, to take extended leave, to have crying spells at work, or to lose concentration. The employee should put the agency on notice of the harassment by complaining through his chain of command and/or to other managers in positions of authority over the harasser.

The following factors are evaluated to determine if there is a hostile work environment: the frequency of the alleged discriminatory conduct; its severity; whether it is physically threatening or humiliating; and if it unreasonably interferes with a complainant’s work performance. In regard to a supervisor’s criticisms, the law considers whether the criticisms were warranted or based on legitimate performance concerns. A supervisor’s unwarranted criticisms of an employee’s work product, standing alone, may be sufficient to make a claim of hostile work environment. All of these factors are considered together to determine if the employee is subjected to a hostile work environment.

If there is no financial harm to the employee from the harassment, the employing agency may avoid liability if the agency did not know about the harassment, if the agency exercised reasonable care to prevent and promptly correct any harassing behavior, or if the employee unreasonably failed to take advantage of any preventive or corrective opportunities (for example, the EEO process). In other words, if you think you are being harassed, you must give the agency a chance to correct its behavior by telling higher-level managers that you are being discriminated against. You can also contact an EEO counselor.

** 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. **