Defining harassment, hostile environment can be difficult

Some forms of harassment can be easy to identify, but others require a close look at how the courts will define harassment, cautions John Lyncheski, JD, an attorney with the firm of Cohen & Grigsby in Pittsburgh.

The two terms most often used to describe sexual harassment claims are "quid pro quo" and "hostile work environment." A quid pro quo claim alleges that the supervisor tried to extract sexual favors from a subordinate through threats or promises regarding the subordinate’s job terms or benefits — the blatant sort of harassment that comes to mind easily. The only defense is to claim that the harassment never occurred, Lyncheski says.

A hostile work environment claim is more nebulous, but it can be just as legitimate as a quid pro quo claim. Lyncheski explains that a hostile work environment refers to unwelcome and offensive verbal or physical conduct severe or pervasive enough to alter the conditions of employment by creating a work environment that a reasonable person would find to be hostile or abusive.

Those standards have been defined by the court in regard to sexual harassment, but Lyncheski says the same standards probably would apply to claims alleging age or race harassment.

Jokes about age may not be acceptable

Age discrimination is prohibited by the Age Discrimination in Employment Act (ADEA), which protects workers from outright employment discrimination based on age, such as refusing to hire someone because he or she is too old for a workplace that prefers younger employees. But the ADEA also protects employees already on the job from disparaging comments or actions regarding their age, Lyncheski says. As with sexual harassment, employers must be careful to let all employees know that disparaging comments about a person’s age are not acceptable. What may be considered joking around by one employee may be considered offensive and unwelcome by another, Lyncheski says.

Recent court rulings indicate that age harassment claimants will be required to satisfy these four criteria if they want to prove a hostile work environment:

• The employee must be 40 years or older.

• The employee must have been subjected to harassment based on age.

• The harassment must have reasonably interfered with the employee’s work performance and created an objectively intimidating, hostile, or offensive work environment.

• There must be some basis for liability of the employer for the harassment.

Lyncheski also cautions that racial slurs or "code words" are considered to contribute to a hostile work environment.

Common sense also necessary when responding

Some claims may pose a challenge to the risk manager trying to determine their legitimacy, but Lyncheski warns that you should not go overboard in declaring some situations to be harassment. He suggests that you look at the big picture, including the nature of the conduct, its severity, its frequency, whether it involves physical threats or humiliation, and whether it interferes with the employee’s work.

"The standard requires extreme conduct and is not meant to include simple or occasional teasing, offhand comments, sporadic use of abusive language or gender-related jokes, or isolated incidents that are not extremely serious, though a single severe incident may suffice," he says. "Horseplay, teasing and off-hand comments should not be considered sexual harassment unless they are serious or extreme."

Overreacting to a harassment claim can have its own drawbacks. If you punish an employee for activity that should not be considered harassment, or if you punish an employee out of proportion with the nature of the offense, the accused employee could have a legitimate claim. As an example, he cites the recent lawsuit known as "the Seinfeld case," in which a man sued his former employer for firing him for harassment.

A subordinate had alleged sexual harassment on the basis of the man’s joking in the workplace about a "Seinfeld" episode in which the Seinfeld character forgot a girlfriend’s name but knew that it rhymed with a part of a woman’s genitalia. The company supported the subordinate’s claim of sexual harassment and fired the man, but he sued and won a $26.6 million award.

"Basically, the employer overreacted, exercised poor judgment, and paid the price," Lyncheski says.