News + Insights

One of the trickiest parts of identifying, discussing, and preventing harassment is that the word means different things in different settings and to different people. People will often say they’re being harassed when they’re being pestered or bothered, but that isn’t the legal definition.

Defining Harassment

We recommend that you reserve the word harassment for conduct that meets the legal definition. Here’s that definition:

Unwelcome conduct + Based on a protected class = Harassment

Protected classes—also sometimes called protected characteristics—come from anti-discrimination law.

The classes and characteristics protected by federal law include race, color, age (over 40), sex, sexual orientation, gender identity, pregnancy, religion, disability, national origin, ethnic background, genetic information (including that of family members), military service, and citizenship or immigration status. Many states also have their own anti-discrimination laws that protect additional classes.

If conduct isn’t both unwelcome and based on a protected class, then the offending employee isn’t harassing. And even if they are harassing, the conduct isn’t necessarily unlawful. Harassment only becomes unlawful when tolerating it is a condition of continued employment, or it is so severe or pervasive that a reasonable person would find it hostile, intimidating, or abusive.

Harassment +

(a) Condition of employment or

(b) Severe or pervasive

= Unlawful Harassment

Whether harassing conduct is unlawful or not, you must take steps to prevent it from happening. When not addressed through policies, procedures, and training (at least), harassment becomes a much larger problem for your workplace.

Claims of Sexual Harassment

When we talk about harassment in the workplace, we’re often talking about sexual harassment. In 2020, over 11,000 sex-based harassment claims were filed with the Equal Employment Opportunity Commission (EEOC). This number doesn’t include charges filed with state and local agencies or situations where employees went directly to an attorney. And many employees who are victims of sexual harassment or are affected by it never report the incidents at all.

Why Targets and Witnesses Don’t Always Report

Targets and witnesses of harassment often refrain from reporting because the harasser has the power to retaliate or because the organization has not set up adequate channels for reporting. In other cases, targets report the harassment, but nothing is done about it. The harassment is excused, and the complaints are rebuffed. Word gets around that the organization tolerates harassment, and people stop bothering to report it. They either keep quiet, file charges with a governmental agency, or call an attorney.

None of these outcomes is good for employers or for the people they employ. If the case ends up in court, harassment can cost employers hundreds of thousands of dollars (or more), especially if harassment is pervasive in the company culture. And when harassment continues unabated, targets suffer physically and psychologically, and often see their careers and personal lives suffer.

Preventing Harassment

It goes without saying that the workplace should be a safe and secure place, and it’s the employer’s responsibility to make it that way. No one can prevent all harassment from happening, but you can and should do everything in your power to prevent harassment and appropriately respond when it occurs.

This starts with your employee handbook. You need a solid harassment policy, an equal employment opportunity policy, and complaint procedure that all employees can easily understand and access. Employers should establish multiple options for reporting, and ensure that they investigate allegations promptly and thoroughly, taking appropriate steps to discipline harassers.

In addition to written policies and procedures, anti-harassment training is essential. In fact, the EEOC recommends employers invest appropriate time and money in it. Training gives employees (especially managers) a deeper understanding of what inappropriate behavior looks like so they can recognize it and stop it.

To ensure your efforts have maximum impact, the EEOC recommends additional preventive measures, such as making a commitment to diversity, equity, and inclusion, holding managers and leaders accountable to anti-retaliation, and creating additional ways for employees to report any problematic behavior to you.

There are a lot of benefits to preventing harassment in your workplace—reduced risk of liability, employees feeling safe, a positive workplace. Another benefit is trust. By working to prevent harassment, and doing it well, you help build trust with your employees. When they trust you, your human resources efforts become all that more impactful. Having the right policies and effective anti-harassment training are a great start.