The Lacy Employment Law firm

The Lacy Employment Law firm

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Practice Areas

Pittsburgh and Philadelphia Harassment Lawyers

Everyone has heard stories about the terrible boss. 

You know — the one who makes jokes you don’t find funny. Maybe they are just offensive. Or they may act in ways that are more sinister. 

These are the bosses that tease and taunt you, making your life hell. Maybe they make a sexual advance that makes you feel demeaned. 

As a result of this behavior, your job performance may suffer. You dread coming into work, but maybe you need this job. Maybe you cannot quit.

The situations above are examples of harassment in the workplace. Harassment in the workplace not only disrupts the work environment, but it is an illegal employment violation.

Harassment lawyers can help you. They can help by advising you of your rights and/or filing a lawsuit on your behalf.

You should not have to deal with harassment. You have the right to a workplace where you feel comfortable.  

If you are experiencing harassment in your workplace, we can help.  

What is Workplace Harassment?

Under Title VII of the Civil Rights Act of 1964, discrimination and harassment against workers belonging to a protected class is illegal.

Harassment is any behavior that creates a severely uncomfortable workplace for an employee.  There are two types of harassment: 1) quid pro quo harassment and (2) hostile work environment

Neither type of harassment requires an adverse employment action, meaning that the employee was fired, demoted, reassigned, etc. The harassment alone is sufficient to show harm.

In fact, in quid pro quo harassment cases, the employee may be offered some benefit as a result of the harassment. For example, your boss could promise you a promotion in exchange for sexual favors.  

A hostile work environment is created by conduct that is:

  • Unwelcome
  • Based on the employee’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information
  • Offensive both to the employee and to a reasonable person
  • Severe or pervasive.

You have to be able to prove each of these “elements” to bring a hostile work environment claim.   

As with any legal claim, your employer will defend against it. They will try to poke holes in your arguments. They will do so by attacking each element.  

The Elements of a Workplace Harassment Claim 

1. The Conduct Was Unwelcome

The first element, that the conduct was “unwelcome,” is easily satisfied in almost every case. The employee just has to show that they did not want their colleague or boss to harass them.  

However, in sexual harassment cases, the employer may challenge this. They may argue that the sexual advance was not something that was rejected.

This advance might be described as flirting. It could be touching. Or it could actually be sexual behavior. An obvious defense for the employer to the “unwelcome” element is that the sexual advances were consensual amongst the employees.  

Your employer could use your words against you. If you told someone that you were in a consensual relationship with this boss, you would have a weaker claim. If the conduct went on for years, and you never complained, your employer might argue that you welcomed the conduct. 

2. The Conduct was “Based on” Your Protected Class 

The second element is that the harassment must be based on the employee being part of a protected class. A protected class is a group of people that share a common characteristic protected under employment laws. 

This includes race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Almost everyone has a characteristic that places them in one of these protected classes.

For example, reverse discrimination is recognized under Title VII. This means that a white male could also be a victim of harassment. Race is a protected class, as is gender.

A great defense for the employer to this element is that the harasser was just a jerk to everyone.

Employment law is made up of numerous statutes. Courts hear arguments from lawyers and then issue opinions interpreting the statutes. In most legal proceedings, courts agree with how the law should be interpreted.

Sometimes, the courts do not agree. Some courts have interpreted the discrimination and harassment statutes to mean that the employer is not liable if the harasser is a jerk to everyone. 

For example, let’s say the harasser yells at both black and white employees throughout the workday. He uses curse words. He disciplines them both for minor infractions. He makes the work environment miserable for all black and white employees on an equal basis.

The employer would have a good argument that this harasser is just a mean boss. A common theme in employment law is that you generally cannot sue just because you have a mean boss.

3. Conduct is not Offensive to a Reasonable Person

Thirdly, the employer’s conduct must be offensive to a reasonable person. Petty slights do not count. 

For example, during a conversation about the company softball league, a coworker makes a comment to an African-American employee saying that he should get involved because he is probably good at sports.

The employee might be offended by the comment. He doesn’t play softball. He never has. 

Although it was offensive to the employee, the comment alone probably would not rise to the level of offensive harassment under the law. A reasonable person probably would not consider a single, misguided assumption to interfere with his work environment, however misguided the comment might have been.  

Further, since the comment occurred on a single occasion, it likely is not sufficiently “pervasive,” meaning common, to meet the standard under the law.

Now, if the comments were to continue and become even more offensive, you can see how employment harassment lawyers could craft a legal argument for harassment.

4. Conduct must be Severe or Pervasive

This last element normally wins or loses harassment claims. You have to prove that the conduct was severe or pervasive.

When the conduct is severe, courts have found that a single act may be sufficient to constitute a hostile work environment claim. For example, courts have pretty much always found that any instance of criminal sexual assault is sufficient to maintain a legal claim for sexual harassment.

When you think of a single act that might create a hostile work environment, you might think of an employee calling another employee the “n-word.”

As a judge, Amy Coney Barret ruled that calling another employee the n-word is not in and of itself sufficient to create a hostile work environment: 

"Smith can't win simply by proving that the word was uttered. Information from harassment lawyers

This decision received some press during Barret’s run for the senate, confirming her Supreme Court nomination.

Although we disagree with the outcome, this raises interesting points. In employment law, the context matters. Was the employee only called the n-word once and then never discriminated against again?  

Even if he was, doesn’t the use of that word make the work environment so hostile that it forever changes his work environment?

Your employment attorney’s job is to work through questions just like these and help develop your case based on your individual circumstances.

Concerning the term “pervasive,” the question that often is raised is about how often the offensive conduct happened over a period in time.  

Let’s say your boss touched you without consent. It happened once. Then, five years later, he starts flirting with you. There is now a five year gap between the touching and the flirting.

The unwelcome acts are not severe. They do not rise to the level of an egregious single act, meaning a single act that is severe enough to require prosecution.

And the conduct does not appear pervasive. In fact, an employer would likely argue that two incidents over a  five-year period is not pervasive.

Courts will use a totality of the circumstances test in determining whether the conduct is illegal harassment. 

This means that you take all these factors together and try to figure out whether harassment occurred. If the conduct was more severe, then it could be less pervasive and still warrant action and vice versa.

What are Examples of Harassment?

There are certain types of behavior that are so reprehensible that a single incident is usually sufficient to constitute illegal harassment.  

Other examples that would normally, but not always, constitute illegal harassment include:

  • using the n-word at work
  • making suggestive comments regarding a coworker’s body
  • verbal or physical threats
  • threats based on a coworker’s  religion
  • offering an employee a promotion for sex
  • assaulting another employee
  • making intimidating visual eye conduct, such as staring someone down
  • sexual advances
  • comments that are of a sexual nature
  • making comments based on stereotypes, for instance, saying something like “You must be smart because you are Asian.”

In certain circumstances, the conduct listed above may constitute illegal harassment. 

This depends on the severity or the pervasiveness of the conduct as well as the circumstances surrounding the conduct.

How Do You Stop Someone From Harassing You?

Getting someone to stop harassing you is not easy. If any of these things have happened or are currently happening to you, you have several options to consider and should consult a workplace harassment lawyer.

Your first line of defense when a coworker is harassing you is to inform your boss. If your boss is the one harassing you, or if telling your boss doesn’t work, you should contact your human resources department. Your human resources department is there to address these types of issues, and the employees there should be trained on what to do. 

It is also helpful to check your employee handbook to see if there is some kind of employee hotline you can call to make a formal complaint. 

If the harassment still does not stop, you could consider speaking with an attorney and/or filing a charge with the Equal Employment Opportunity Commission (EEOC).

The Equal Employment Opportunity Commission (EEOC) is a federal agency. Congress has given the EEOC the power to investigate employment violations and enforce employment laws.  

By filing a charge with the EEOC, you put your employer on notice that you believe you have been harassed. The EEOC will then investigate your claim.

Filing a charge is a powerful tool to stop unlawful employment discrimination and harassment. Your company will likely take it seriously because the EEOC will investigate the claims against you. Your employer also knows that they could face a potential lawsuit down the line.

Further, filing an EEOC complaint gives you protections — if your company fires you after you make the complaint, you have a much better basis for a potential retaliation claim.  

How Can you Sue for Harassment?

Suing for harassment involves first filing a charge with the EEOC. Note that you only have 180 days (generally) after the discrimination occurs to file a charge with the EEOC. So, if you are fired, make sure you file a charge with the EEOC within 180 days after you are fired.

You also need to make sure that you allege all the claims you believe you are entitled to in your charge. If you do not, you may lose these claims.

These reasons all show why it’s helpful to have a lawyer at this stage. With a lawyer, you can be sure to bring all the claims to which you are legally entitled.

After filing a charge, the EEOC will investigate. Then the EEOC will either choose to bring the lawsuit itself on your behalf, which is rare, or they will issue you a right to sue letter, which means you can file a lawsuit. 

Again, be careful to read your right to sue letter carefully. You only have 90 days from receiving the notice of a right to sue to file a lawsuit. 

At this stage, it’s helpful to hire a harassment attorney to take your case to court.

After you get a right to sue letter, you and your lawyer will file a complaint in federal court. Filing a complaint is the first step in your lawsuit for harassment.  

Generally, the EEOC’s investigation takes about six months. Lawsuits usually take one to two years. The overwhelming majority of cases do not end in trial. Instead, they settle at different stages in the lawsuit.  

Sometimes they settle while the EEOC is still investigating the claim. Sometimes they settle right before trial.  

The general rule is that the longer your case goes, the more likely your company is to offer a better settlement. This is because there are several points at which a judge might dismiss your case.

If your case survives dismissal, that means that it is likely a better case. The better the case, the better the settlement.  

Can you Sue your Employer?

Normally employees ask how they can sue. With harassment claims, they should also ask who they can sue.

In discrimination cases, you have to suffer an adverse employment action to sue. This means that you must have suffered a change in your employment, such as being fired, not promoted, reassigned with less responsibilities, demoted, promoted, or being docked in pay.

In harassment cases, you do not need to show that there has been a tangible employment action. In these cases, the harassment alone is sufficient.

In harassment cases, you can also bring suit against the harasser. And your employer can be on the hook for the supervisor’s behavior, particularly if the employer knew about the harassment and did nothing to stop it.

So, if your company does not take reasonable steps to prevent and correct the harassment, you can still sue the company.

Although it may be harder for your employer to be liable if the harassment was by a coworker rather than a boss, it may still be enough to hold them liable. Again, if your employer knew you were being harassed and did nothing, they can still be liable.

This is all very important to your case. You want to make sure that you sue your company as well as your supervisor. Amongst other reasons, this is because your company likely has the resources to pay your settlement.

Further, federal courts have ruled that managers and supervisors may not be found personally liable for harassment and other forms of discrimination. Under certain states’ laws, however, your supervisor or manager can be found liable.  

Workplace Bullying

Bullying in the workplace seems pretty similar to harassment. Bullying tends to occur when someone is put down, made fun of, or verbally berated.  

Unfortunately, bullying is not illegal. It is not illegal to be a terrible boss. And it is not harassment if the terrible boss is not picking on an employee based on their inclusion in a protected class.

Employers still have an interest in stopping workplace bullying. Bullying reduces employee productivity. It diminishes morale in the workplace, and it makes the work environment toxic.

It is still important to consider the options when dealing with bullying, such as filing a complaint. Sometimes the bullying rises to such a pervasive level that it is still easy to believe that an employee is being singled out. And perhaps it is so pervasive that this employee feels that some characteristic about them has made their bully-boss target you.

It is always important to tell a supervisor or the human resources department if someone is being bullied at work, even if the bullying is not based on race, gender, religion, etc.

If the bullying has turned into harassment, filing an EEOC charge should be considered.  Especially if this behavior has been reported to an employer and the employer did nothing about it.  

Conclusion

Workplace harassment hinders your professional life and advancement.  However, you have protectections under the law. If you believe that someone is harassing you at work, remember that the behavior must be:

  • Unwelcome
  • Based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information
  • Offensive both to the recipient and to a reasonable person
  • Severe or pervasive.

If you think — or even if you are unsure — that your situation meets the definition of harassment, you should let us know. We can provide you with a free consultation at no cost to you. And we only charge a fee if we win your harassment case.

If you have experienced harassment in Philadelphia or in Pittsburgh, harassment attorneys can help you stop the harassment and sue for damages.  

Has your workplace mistreated you? Has the mistreatment risen to the level of harassment?  What are you going to do about it?

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