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“What Does NOT Constitute Harassment Or Discrimination?”

Posted on December 6, 2016 in Employment Law

It is not unusual for unfair or degrading or unpleasant things to happen on the job. Many of us have hurtful experiences at the hands of supervisors, co-workers and customers. But not every slight in the workplace makes a good legal case.

Let’s clarify what rises to the level of an actionable offense, and what does not.

  1. The mistreatment should be a pattern rather than an isolated incident.
  2. Not all touching constitutes sexual harassment. A congratulatory pat on the back is not harassment. A pat on the behind may well be – if it is part of a pattern. Behavior that is proper and normal cannot be construed as harassment.
  3. Any sexual quid pro quo suggestion – “Do this for me if you want to succeed here” – qualifies as sexual harassment.
  4. Your boss or colleagues are allowed to be friendly with you unless you make clear it is unwelcome.
  5. Your complaint must be reasonable. A good test is to ask, Would anyone else complain about this behavior?
  1. The fact that you feel stressed out is not proof of a hostile work environment. Unless you are a mattress tester, most jobs cause some degree of stress from time to time. Even when stress levels run high, if everyone experiences them fairly, you probably do not have a strong case.
  2. If, however, you experience a constant, high degree of stress, such as a boss yelling at you all day every day, you may have a case.
  3. Employers are allowed to review and report on your performance, and to hold poor performance against you. But they must be fair about it, applying the same standards to all others as well.
  4. Difficult conditions of employment do not by themselves constitute harassment or creating a hostile work environment.
  5. Organizational changes do not constitute harassment, even if they cause you to lose status or affect job satisfaction.
  6. The same rule applies to conflict. Many jobs, such as sales, pit worker against worker to obtain performance. You may object to this as obnoxious, but that does not make it illegal.
  7. You should be allowed to complain to your superiors, and even to go to outside authorities to report mistreatment. If you are fired, demoted, or punished in any way because you complained or reported, that constitutes retaliation, and is definitely against the law.
  8. Finally, in discrimination cases, you must be a member of a specifically protected group, identifiable by race, color, religion, national origin and age. It is illegal to discriminate against men and women on the basis of sex, and people with physical or mental handicaps.

These are not all easy distinctions to make. But it is always wise, before filing a claim that you could lose, to ask yourself if your situation meets the requirements listed above. If you have any questions, call our office and we will be happy to help you evaluate the strength of your case.