Last week, we began our three part series on the EEOC’s recently released guidance on investigating harassment in the workplace with a discussion of the different forms of discriminatory harassment and causation. This week, we’ll be discussing the guidance with regard to conduct leading to the finding of unlawful discrimination. The U.S. Supreme Court has found two different examples of unlawful harassment: quid pro quo harassment, and harassment that leads to a hostile work environment.
In explaining quid pro quo harassment, the agency explained that the issue to be determined is still whether the complainant has satisfied the statutory requirement of establishing discrimination because of sex affecting the terms of conditions of employment. If a benefit is denied or threatened to be denied after a refusal to comply with a supervisor’s request for sexual favors, “the threat itself is a particularly severe form of harassment and would constitute unlawful sex discrimination if it establishes a hostile work environment.”
With regard to hostile work environment harassment, the conduct is actionable if it is “sufficiently severe or pervasive ‘to alter the conditions of the complainant’s employment and create an abusive working environment.’” This language has been the subject of much criticism, especially in the light of the “Me Too” movement, in that this standard is so high it seems unreachable for many complainants. However, the EEOC stands by the standard, stating the conduct must create “an objectively and subjectively hostile work environment. Meaning that even if a reasonable person would find the conduct to be severe or pervasive, the complainant must also find the conduct to alter their working environment.
When evaluating whether a hostile work environment exists, investigators will evaluate the “totality of the circumstances,” and not rely on only one factor. Hostile work environment claims are not limited to sex, either, as a hostile work environment can affect anyone who meets protected class status.
When evaluating the severity of the employer’s conduct, the EEOC states that “harassment by a supervisor or other individual with authority over the complainant typically has more impact on a complainant’s work environment than similar misconduct by an individual lacking such authority. It goes so far to say that even if the complainant is mistaken about the level of authority the harasser has, the severity of the conduct may be heightened.
In addition, harassment that takes place in the presence of the complainant, rather than conduct that is learned about second-hand, is also “more probative of a hostile work environment.” If the conduct takes place in front of a complainant’s co-workers, embarrassing the complainant, it can be seen as more severe. At the same time, conduct that takes place while the complainant is isolated can be seen as more severe due to the possible threatening nature of the conduct. A single act can constitute conduct so severe as to alter the working environment, but it must be severe, such as sexual assault, physical violence, or hate symbols and speech.
In discussing the ever-ambiguous “pervasiveness,” the agency stated that there is “not a ‘magic number’ of harassing incidents that automatically establishes a hostile work environment.” It will look at the specific facts of each case.
The final point of discussion this week falls on the issue of “unwelcomeness.” It is still important that a complainant make it known that the conduct of the harasser is unwelcome. However, in its guidance, the EEOC states that it is the Commission’s position that this requirement was effectively subsumed [by the requirement] that conduct be both subjectively and objectively hostile.” Based on this, it is clear that a complainant need not inform the alleged harasser that their conduct is unwelcome and needs to stop.
The guidance is definitely worth a read, as it gives you insight into exactly what the EEOC is looking at in its investigations. We’ll be back next week for the final installment where we’ll discuss the scope of harassment to be examined by investigators, as well as liability standards for harassment cases. If you, or your organization need assistance in investigating claims of harassment, contact Wiley Reber Law, for investigation experience that works.