Understanding Workplace Harassment: Employer Liability and Prevention

I. Introduction

A. Background

Since the landmark 1986 U.S. Supreme Court case Meritor Savings Bank, FSB v. Vinson, workplace harassment has been recognized as unlawful discrimination under Title VII of the Civil Rights Act of 1964. Despite this legal precedent and increased public awareness through movements like #MeToo, harassment remains a significant issue. From fiscal year 2018 to 2022, thirty-five percent of employment discrimination charges received by the Equal Employment Opportunity Commission (EEOC) included harassment allegations based on protected characteristics such as race, sex, or disability. These cases highlight the persistent reality of unlawful harassment across various workplaces.

While high-profile cases often involve sexual, racial, or national origin harassment, the EEOC also enforces prohibitions against harassment based on color, religion, disability, genetic information, and age (40 and over). This guidance provides a legal analysis of harassment standards and employer liability under equal employment opportunity (EEO) statutes. It consolidates and supersedes previous EEOC guidance documents, offering a resource for EEOC staff, other agencies, employers, employees, legal practitioners, and courts. This document aims to clarify existing legal requirements and Commission policies but does not predetermine the outcome of any specific EEOC charge. The EEOC evaluates harassment claims based on the specific facts and circumstances of each case, within the framework of the law. This guidance is not exhaustive but provides clarity on current legal and policy requirements.

B. Structure of this Guidance

This guidance explains the evaluation process for determining whether harassment violates federal EEO law, focusing on three key components of a harassment claim:

Covered Bases and Causation: Was the harassing conduct based on a legally protected characteristic under federal EEO statutes?
Discrimination Regarding Employment Terms, Conditions, or Privileges: Did the harassment lead to discrimination concerning a term, condition, or privilege of employment?
Liability: Is there a basis for holding the employer liable for the harassing conduct?

Additionally, this guidance addresses systemic harassment and provides links to EEOC resources, including “Promising Practices for Preventing Harassment,” a tool for employers to prevent and address harassment effectively.

II. Covered Bases and Causation

Harassment is only legally recognized under EEO laws if it is rooted in an employee’s legally protected characteristics.

Federal EEO laws protect employees from workplace harassment when it is demonstrably based on characteristics legally protected by these statutes. Section II.A. of this guidance outlines these protected characteristics, and Section II.B. clarifies how to determine if harassing conduct occurs because of these characteristics.

A. Covered Bases

Federal EEO law covers harassment based on perceived protected characteristics, even if those perceptions are incorrect. For instance, harassing a Hispanic person under the mistaken belief they are Pakistani is still considered national origin harassment. Similarly, harassing a Sikh man wearing a turban, mistaking him for Muslim, is religious harassment.

“Associational discrimination” is also protected. This encompasses harassment due to an employee’s association with someone in a different protected class or even the same protected class. These associations can include familial relationships like marriage or close friendships with individuals in protected groups.

Harassment remains covered even if the harasser and the victim belong to the same protected class.

Employees can experience harassment based on multiple protected characteristics simultaneously. A Black woman, for example, might face harassment due to both her race and gender, or specifically due to stereotypes about Black women—known as intersectional harassment. Harassment against older women based on age stereotypes is similarly covered.

Harassment based on one protected characteristic, such as national origin, can overlap with another, like religion, due to associations between groups. Harassment targeting a Muslim individual from the Middle East can be based on both national origin and religion.

Protected characteristics also include social or cultural expectations about how individuals of a certain race, national origin, or sex should act or behave. This includes harassment based on assumptions about race, ethnicity, sex-based assumptions about family roles, leadership suitability, or traditional gender roles.

As detailed in Section II.B., harassment does not need explicit reference to a protected characteristic to be considered based on it, especially with other evidence establishing causation.

Retaliation claims, including retaliatory harassment, are evaluated under retaliation standards, distinct from harassment based on protected class. For more on retaliation, see EEOC’s Enforcement Guidance on Retaliation and Related Issues.

B. Establishing Causation

Causation is established when evidence shows the complainant faced harassment because of a protected characteristic, regardless of whether the harasser explicitly mentioned that characteristic. EEO statutes do not prohibit harassment unrelated to protected characteristics.

Example 5: Harassment Motivated by Protected Characteristic. James, a temporary worker at a bank, reports coworkers making derogatory comments about his Japanese ethnicity, using slurs and mocking his accent. This constitutes national origin harassment.

Example 6: Harassment Not Proven to be Motivated by Protected Characteristic. Isaiah, a customer service representative, claims harassment based on national origin and color by coworker Zach. Zach’s hostile behavior—throwing paper, shoving, threats—began after Isaiah started dating Zach’s ex-girlfriend, also an employee. Investigation found no link between Zach’s actions and Isaiah’s national origin or color, indicating insufficient evidence of harassment based on protected characteristics.

Determining if workplace harassment is based on a protected characteristic relies on the totality of circumstances. While each case is fact-specific, the principles discussed here generally apply to causation.

III. Harassment Resulting in Discrimination with Respect to a Term, Condition, or Privilege of Employment

A. Background: Distinguishing an Explicit Change to the Terms, Conditions, or Privileges of Employment from a Hostile Work Environment

Employer liability under EEO statutes for workplace harassment requires that the harassment affects a “term, condition, or privilege” of employment. Meritor Savings Bank, FSB v. Vinson identified two forms of unlawful harassment: (1) explicit changes to employment terms linked to protected characteristic-based harassment, such as firing someone for rejecting sexual advances, and (2) constructive changes to employment terms through a hostile work environment.

The first type, initially termed “quid pro quo” harassment, in early cases involved supervisors retaliating against employees for refusing advances.

However, current interpretation, citing Burlington Industries, Inc. v. Ellerth, views quid pro quo as a factual claim about how sex became the basis for adverse employment conditions. The core issue remains whether discrimination “because of sex” affected employment terms or conditions. For instance, a supervisor threatening and then denying a promotion for rejecting sexual advances is explicit sex discrimination. Even an unfulfilled threat can create a hostile work environment, especially when combined with other harassing conduct.

Absent explicit changes, harassment must create a hostile work environment to be actionable. This occurs when conduct is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” As Harris v. Forklift Systems, Inc. clarified:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.

Thus, without explicit changes to employment terms, harassment based on protected characteristics is actionable when it is severe or pervasive enough to create both objectively and subjectively hostile work environments. Hostile environment claims can include any hostile conduct impacting the complainant’s work, even independently actionable employer conduct. For example, demotion for refusing sexual advances is both sex discrimination and part of a hostile work environment.

EEO statutes are broader than just tangible economic effects; they address the “entire spectrum of disparate treatment.” However, they do not cover “run-of-the-mill boorish, juvenile, or annoying behavior.” The severe-or-pervasive standard is a “middle path,” requiring more than mere offensiveness but not necessarily psychological harm.

Whether conduct creates a hostile environment depends on all circumstances, including frequency, severity, physical threats or humiliation, interference with work performance, and psychological harm. If harassment is based on multiple protected characteristics and related enough to be part of the same hostile environment, all acts are considered together.

Example 13: Age-Based Harassment Creates Hostile Work Environment. Henry, a 62-year-old consultant, is daily called “old man” by his supervisor, Ryan. Ryan repeatedly asks about Henry’s retirement plans, wanting “young blood” and “fresh ideas.” In a meeting, Ryan joked about the flu targeting “old timers,” directly at Henry. Henry feels targeted and ashamed. This constitutes age-based hostile work environment.

B. Hostile Work Environment

Key questions for evaluating a hostile work environment claim:

Was the conduct objectively and subjectively hostile?
- Objective hostility: Was the conduct severe or pervasive enough?
- Subjective hostility: Did the complainant perceive it as hostile?
What conduct is considered part of the claim?
- Can off-workplace conduct be included?
- Can conduct not directly aimed at the complainant be included?

Even if subjectively offensive, conduct must be objectively severe or pervasive to violate EEO law. Conduct need not be both severe and pervasive; more severe harassment requires less pervasiveness, and vice versa. There is no “magic number” of incidents nor a minimum severity threshold. Each case depends on specific facts and the totality of circumstances.

A hostile work environment can include physical or sexual assaults, threats, offensive jokes, slurs, intimidation, ridicule, insults, ostracism, offensive imagery, and work interference.

Proof of harm to work performance is not required; the harassment must only “alter[] the terms or conditions” of employment. Psychological injury is also not required, though it can be relevant evidence.

Example 14: Hostile Work Environment Despite Continued Good Performance. Irina, a sales representative, works in a cubicle near coworkers who graphically discuss sexual encounters, use sex-based slurs, view pornography, and sometimes come to weekend shifts partially clothed. Irina is horrified and often cries but maintains above-average work performance. She files an EEOC charge for sex-based hostile work environment. Despite no work performance decline or apparent psychological injury, the conduct’s nature and Irina’s reaction establish a hostile work environment because it made her job more difficult for a reasonable person.

1. Severity

a. General Principles

Harassment by supervisors carries more weight due to their authority. “A supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” Harassment severity increases if the complainant reasonably believes the harasser has authority, even if mistaken.

Directly targeted harassment has a stronger impact. Harassment in the complainant’s presence is generally more significant than secondhand accounts. However, knowledge of harassment experienced by others can contribute to the severity of one’s own hostile environment.

Harassment severity can vary based on context. Sexually degrading comments are more severe when made in front of subordinates, increasing humiliation. Conversely, some harassment is more severe in isolation, enhancing its threatening nature.

Severity assessment is context-dependent. Other factors, like a belief that the harasser is protected from consequences (e.g., highly valued employee or employer inaction in similar cases), can heighten severity.

b. Hostile Work Environment Based on a Single Incident of Harassment

In limited cases, a single incident can create a hostile work environment. Examples include:

Using epithets based on protected characteristics is a severe form of harassment. Epithets are “intensely degrading, deriving their power to wound not only from their meaning but also from ‘the disgust and violence they express phonetically.’”

2. Pervasiveness

Most hostile environment claims involve repeated acts. Frequent, less severe incidents can create a hostile work environment. The cumulative effect of these acts is key, not individual acts in isolation. No “magic number” of incidents exists. Pervasiveness depends on case-specific facts. Relevant factors include frequency and the timeframe of incidents.

Example 15: Pervasive Sexual Harassment Creates Hostile Work Environment. Juan, an airline passenger service assistant, reports sexual harassment by coworker Lydia. Lydia made sexual overtures and sex-based conduct towards Juan several times a week for six months, despite his rejections. She gave him revealing photos, date requests, described sexual fantasies, and constantly complimented his attractiveness and declared her love. This pervasive conduct, regardless of severity of individual acts, creates a hostile work environment.

Example 16: Extensive Sexual Favoritism Creating a Hostile Work Environment. Tasanee, a government agency employee, alleges sex-based hostile work environment. Supervisors were openly in consensual sexual relationships with subordinates, granting them promotions and benefits. This pervasive, public favoritism creates a sexually hostile work environment for other employees who find it offensive and affecting their work motivation.

C. Subjectively and Objectively Hostile Work Environment

Harris v. Forklift Systems, Inc. (1993) established that hostile work environment requires both subjective and objective hostility.

1. Conduct That Is Subjectively and Objectively Hostile Is Also Necessarily Unwelcome

While unwelcome harassment is required, conduct that is subjectively and objectively hostile is inherently unwelcome. Unwelcomeness is logically part of subjective hostility. Lewd, sexist, derogatory comments, if subjectively hostile, are by definition unwelcome. Unwelcomeness can also inform objective hostility.

2. Derivation of Unwelcomeness Inquiry

The unwelcomeness inquiry originates from Meritor Savings Bank, FSB v. Vinson (1986) and EEOC Guidelines. Meritor focused on unwelcomeness to distinguish it from voluntariness, noting participation does not equate to welcomeness. Harris (1993) refined hostile environment analysis to subjective and objective hostility, seemingly subsuming unwelcomeness within these criteria.

Post-Harris, some courts view unwelcomeness within subjective hostility, while others treat it as a separate element alongside subjective and objective hostility. The EEOC views the latter approach as potentially redundant and confusing.

3. Subjectively Hostile Work Environment

A complainant’s statement of perceived hostility is generally sufficient for subjective hostility. Complaints or reports to family, friends, or coworkers also indicate subjective hostility.

Subjective perception is complainant-specific. A male complainant not welcoming sexual advances from a female supervisor is valid regardless of how other men might react. Tolerance or participation does not negate subjective hostility; employees may “go along to get along” despite finding conduct hostile.

Subjective perception can be challenged with evidence that the complainant did not find the conduct hostile, such as statements to that effect.

However, subjective perception can change over time, e.g., welcoming conduct initially but later finding it hostile, especially after relationship changes. Welcoming conduct from one person does not imply welcomeness from all, nor does accepting minor sexual conduct mean accepting all forms, especially severe forms.

4. Objectively Hostile Work Environment

Conduct must be objectively hostile—an environment a reasonable person in the plaintiff’s position would find hostile. This is evaluated within “surrounding circumstances, expectations, and relationships.”

Objectivity requires “sensitivity to social context” and perspective of a reasonable person within the complainant’s protected class. Racial harassment against a Black individual should be assessed from the viewpoint of a reasonable Black person in similar circumstances. Conduct can be hostile even if some within the protected class do not find it so.

Personal or situational characteristics can influence objective perception. Age difference between harasser and victim, or a complainant’s undocumented status and fear of deportation, can intensify perceived hostility.

Example 17: Religion-Based Harassment Creates Objectively Hostile Work Environment. Josephine, a Jewish IT specialist, explains at a company barbecue her dietary laws prevent eating pork. Coworkers then call her “Jew-sphine,” question her need to work with “Jew money,” and claim “Jews control the media.” This conduct, from a reasonable Jewish person’s perspective, creates an objectively hostile environment based on religion.

Example 18: Disability-Based Harassment Creates Objectively Hostile Work Environment. Jin, a cook with PTSD, informs coworkers of his sensitivity to loud noises and surprise physical contact due to his condition. Lila, a server, regularly creates loud noises and startles Jin for amusement. Jin is visibly distressed and his work suffers. Despite Jin’s requests to stop, Lila continues. This harassment, from a reasonable person with PTSD’s perspective, constitutes an objectively hostile environment based on disability.

There is no “crude environment” exception to Title VII if harassment meets the severe or pervasive standard. Prevailing workplace culture does not excuse discriminatory conduct. Public displays of pornography can create a hostile environment for women, even if long-standing practice.

Unwelcomeness can also be relevant to objective hostility. Some courts consider whether the harasser was notified that the conduct was unwelcome—i.e., whether the complainant communicated or the harasser had reason to know it was unwelcome. Notice can determine if it’s objectively reasonable to perceive ongoing conduct as hostile. Flirtatious behavior, if unwelcome, can become objectively hostile if persistent after notice.

Similarly, religious expression, if unwelcome and persistent after objection, can become objectively hostile.

D. The Scope of Hostile Work Environment Claims

1. Conduct Must Be Sufficiently Related

Incidents forming a hostile work environment claim are considered a single unlawful employment practice. A pattern of conduct can be challenged if at least one incident is timely. Earlier conduct must be sufficiently related to later conduct to be part of the same claim. Relevant factors include similarity, frequency, and same individuals involved.

A hostile work environment claim can include any hostile conduct affecting the work environment, even independently actionable conduct. A discriminatory transfer by a supervisor using racial slurs can contribute to a racially hostile environment. The transfer can be challenged as part of the hostile environment claim and considered in assessing severity or pervasiveness. A separate claim for discriminatory transfer is also possible if timely.

Example 19: Related Harassment Across Departments. Noreen alleges religious (Islam) and national origin (Pakistani) harassment. Team leader Josiah made offensive comments. No action was taken after complaint. Transferred to another dept, she saw Josiah talking to Franklin, who then started similar harassment. Plant manager failed to act on both complaints. Harassment across departments, similar nature, short time span, meeting between harassers, and same manager responsible, constitutes one hostile work environment claim.

Example 20: Unrelated Harassment Across Departments. Cassandra alleges sexual harassment in production and estimating departments. Production harassment included explicit discussions, jokes, vulgar language. After transfer, only incident was overhearing a comment about a “sleepover” a year later, not directed at her. No interaction between departments. Harassment in different departments is considered separate hostile work environment claims due to lack of relation.

2. Types of Conduct

a. Conduct That Is Not Directed at the Complainant

Harassing conduct can affect an employee’s environment even if not directly aimed at them. More direct impact is more probative. Gender-based epithets can create a hostile environment for women even if not directed at them. Anonymous harassment like racist graffiti can contribute to a hostile environment even if not targeted at specific employees. Offensive conduct directed at others in the complainant’s protected class can also contribute, even outside the complainant’s presence if they become aware of it during employment and it’s related to their work environment.

Example 21: Conduct Not Directly Against Complainant Contributes to Hostile Work Environment. Lilliana, a white District Manager, used racial slurs and derogatory comments about Black sales representatives to Peter, a Black Assistant District Manager, and his subordinates. Even comments made outside Peter’s presence, but known to him, contribute to a hostile work environment for Peter.

Individuals harmed by harassment of a third party can also file charges.

Example 22: Individual Harmed by Harassment of Third Party. Sophie, white and Christian, works with Quentin, Black and Muslim, and supervisor Jordan, white and Christian. Jordan frequently harasses Quentin based on race and religion. Jordan orders Sophie to sabotage Quentin’s work and exclude him from meetings. Sophie reluctantly complies due to fear of repercussions. Both Quentin and Sophie file charges. Sophie has standing due to being forced to participate in the harassment, despite not being the direct target of protected-status based harassment.

b. Conduct That Occurs in Work-Related Context Outside of Regular Place of Work

Hostile environment claims can include conduct in work-related contexts outside the regular workplace. Harassment during employer-required training, even off-site, is within the “work environment.”

Example 23: Harassment at Off-Site Party Within Work Environment. Fatima’s coworker Tony harassed her at an employer-hosted holiday party at a restaurant. Despite being off-site, it was a work-related context, thus within Fatima’s work environment for a sexual harassment claim.

Conduct using work-related communication systems (email, video meetings, etc.) is also within the work environment. Sexist comments in video meetings or racist imagery visible during video calls contribute to hostile environments.

Example 24: Conduct on Employer’s Email System Creates Hostile Work Environment. Ted sent racially stereotypical jokes via work email to colleagues, including Perry, who is Black. Despite complaints, Ted continued. This contributed to a hostile work environment for Perry because it used work systems and was workplace-related.

c. Conduct That Occurs in a Non-Work-Related Context, But with Impact on the Workplace

Employers are generally not liable for non-work-related conduct unless it impacts the workplace and contributes to a hostile environment. Racist slurs and assault by coworkers outside work can create a hostile environment if those coworkers are present in the workplace.

Electronic communications via personal devices or social media can impact the workplace. Ethnic slurs against an Arab American employee on a coworker’s personal social media, if known in the workplace, can contribute to a racially hostile environment.

Example 25: Social Media Conduct Outside Workplace Impacts Workplace. Rochelle, a Black home health aide, was harassed by Caribbean coworkers Martina and Terri, culminating in an offensive Instagram post comparing her to an ape. This post, seen by another coworker, contributed to a hostile work environment.

Non-consensual distribution of intimate images via social media can also contribute to a hostile environment if it impacts the workplace.

Supervisor harassment outside the workplace is more likely to contribute to a hostile environment than coworker conduct, given supervisory authority.

IV. Liability

A. Overview of Liability Standards in Harassment Cases

For explicit changes to employment terms linked to protected characteristic harassment (“quid pro quo”), the employer is automatically liable, with no defense.

For hostile work environments, liability standards depend on the harasser’s relationship to the employer and the nature of the environment:

Proxy or alter ego of the employer: Employer automatically liable, no defense.
Supervisor:
- Tangible employment action included: Employer vicariously liable, no defense.
- No tangible employment action: Employer vicariously liable, but may use Faragher-Ellerth affirmative defense.
Non-supervisory employee, coworker, or non-employee: Employer liable if negligent in preventing or correcting harassment.

Negligence is a minimum liability standard, regardless of harasser status. Automatic and vicarious liability are additional, not replacements for negligence.

If harassment involves supervisors and coworkers/non-employees, separate liability analyses are needed for each harasser type.

B. Liability Standard for a Hostile Work Environment Depends on the Role of the Harasser

Liability depends on the authority the employer gives the harasser.

1. Proxy or Alter Ego of the Employer

Alter ego or proxy status applies to individuals of high rank whose actions represent the employer. This includes owners, partners, corporate officers, and high-level managers with significant influence. Supervisors with control over employees are not automatically alter egos.

2. Supervisor

A “supervisor” is empowered by the employer to take tangible employment actions against the victim.

“Tangible employment action” means significant changes in employment status requiring an “official act” of the employer, such as hiring, firing, demotion, significant reassignment, compensation decisions, and benefit changes. Some decisions, like limiting promotion eligibility or significant job responsibility reduction without pay cut, can also be tangible actions.

Even without final decision-making authority, individuals with the power to recommend or substantially influence tangible employment actions are supervisors.

Employees perceived by the harassed employee to have authority to take tangible actions, based on employer actions (e.g., unclear chain of command), are also considered supervisors (“apparent authority”).

3. Non-Supervisory Employees, Coworkers, and Non-employees

EEO laws protect against harassment by non-supervisory employees (coworkers, shift leads with limited authority) and non-employees (contractors, customers, students, patients, clients).

C. Applying the Appropriate Standard of Liability in a Hostile Work Environment Case

Liability assessment follows harasser status determination.

1. Alter Ego or Proxy – Automatic Liability

If the harasser is an alter ego/proxy, the employer is automatically liable, with no defense. This applies regardless of tangible employment action.

Example 26: Harasser Was Employer’s Alter Ego. Gina, Peruvian-American, alleges national origin harassment by VP Walter, the only VP reporting to the president, with managerial responsibility. Walter’s high rank and control make him the employer’s alter ego, leading to automatic employer liability.

2. Supervisor – Vicarious Liability

Employers are vicariously liable for supervisor-created hostile work environments. This liability can be limited by the Faragher-Ellerth affirmative defense if no tangible employment action occurred. The employer bears the burden of proving this defense.

If a supervisor takes a tangible employment action as part of the hostile work environment, the employer is automatically liable, with no defense.

If a supervisor does not take a tangible employment action, the employer can use the Faragher-Ellerth affirmative defense by proving both:

Reasonable action to prevent and promptly correct harassment.
Employee unreasonably failed to use complaint procedures or avoid harm.

a. Hostile Work Environment Includes a Tangible Employment Action: No Employer Defense

Employer is always liable if a supervisor’s harassment includes a tangible employment action. Tangible actions demonstrate the misuse of supervisory authority, making the employer liable.

Tangible actions can occur anytime during the hostile environment, not just at the end. For example, denial of pay raises for rejecting sexual advances is a tangible action leading to employer liability for the hostile environment.

Unfulfilled threats of tangible actions are not tangible actions themselves but can contribute to a hostile environment. Fulfilling threats (e.g., denying promotion for rejection) or promises (e.g., granting promotion for submission) are tangible actions.

b. Hostile Work Environment Without a Tangible Employment Action: Establishing the Faragher-Ellerth Affirmative Defense

If supervisor harassment creates a hostile environment without a tangible employment action, the employer can use the Faragher-Ellerth affirmative defense to limit liability. This defense requires proving:

Employer exercised reasonable care to prevent and promptly correct harassment.
Employee unreasonably failed to use preventative or corrective opportunities or avoid harm.

This defense balances vicarious liability with encouraging employer prevention and employee action. Both elements are necessary. Failure to prove either element results in employer liability.

Example 27: Employer Fails to Establish Affirmative Defense. Chidi alleges national origin harassment by supervisor Ang. Employer lacks a written anti-harassment policy and comprehensive training, telling employees to “follow chain of command,” meaning reporting to Ang. Ang used egregious epithets. Manager dismissed complaints as “just Ang.” Employer fails both prongs of the defense, lacking reasonable prevention and correction, and cannot prove employee unreasonable failure to use complaint process (which would require reporting to harasser). Employer is liable.

Example 28: Employer Avoids Liability by Establishing Affirmative Defense. Kit alleges race-based hostile environment by supervisor. Harassment escalated over months. Employer had effective anti-harassment policy, widely displayed and distributed, and no prior harassment by this supervisor. Kit never complained. Employer learned from coworker and took immediate corrective action. Employer not liable because of effective policy, prompt action, and Kit’s failure to utilize complaint procedures or avoid harm.

i. First Prong of the Affirmative Defense: Employer’s Duty of Reasonable Care

The first prong requires employers to show reasonable care in both preventing and correcting harassment. This includes general prevention measures and specific actions regarding the complainant’s harassment. Reasonable prevention and correction measures are also relevant for non-supervisor harassment liability.

Title VII does not specify required steps; overall reasonableness is sufficient. Effective prevention and response typically involve: anti-harassment policy, complaint process, training, and workplace monitoring.

An effective anti-harassment policy should include:

Clear prohibition of harassment.
Definition of prohibited conduct.
Coverage of all protected characteristics.
Examples of prohibited conduct.
Clear complaint procedures.
Protection against retaliation.
Confidentiality considerations.
Commitment to prompt investigation and corrective action.

An effective complaint process should:

Be easily accessible.
Provide multiple reporting avenues.
Be accessible to all employees.
Ensure prompt, thorough, and impartial investigations.
Guarantee protection of complainant and witnesses.
Provide clear process for corrective action.
Ensure consistent application.

Effective training should:

Explain policy and complaint process.
Describe and exemplify prohibited harassment.
Detail employee rights.
Inform supervisors/managers on prevention, identification, reporting, and correction.
Be tailored to workplace and workforce.
Be regularly provided to all employees.
Be clear and easy to understand.

However, policy, procedure, and training are insufficient without effective implementation. Failure to implement, bad faith adoption, or dysfunctional policy negates the defense. Similarly, policy and training do not suffice if the employer fails to reasonably correct known harassment. Supervisor witnessing harassment imputes knowledge to the employer, triggering corrective action duty.

Example 29: Employer Liable for Failure to Respond to Reported Harassment. Aisha, cashier, alleges sexual harassment by supervisor Pax. Aisha told Pax to stop, then reported to another supervisor, Mallory, also her direct supervisor, as per policy. Mallory dismissed Aisha’s concerns. Harassment continued. Aisha then contacted HR, and the employer acted promptly. However, Mallory’s failure to act after initial report means employer failed to exercise reasonable care and cannot establish affirmative defense, despite later HR action.

Example 30: Employer Liable for Failure to Respond to Witnessed Harassment. Department store has an effective anti-harassment policy and training. Supervisor Dustin routinely exposed himself to Claudia, a stocker. Another supervisor, Ravi, witnessed this but only verbally admonished Dustin, taking no further action. Employer cannot establish affirmative defense. Despite preventative measures, failure to correct harassment known through Ravi’s observation makes them liable.

ii. Second Prong of the Affirmative Defense: Employee’s Failure to Take Advantage of Preventive or Corrective Opportunities

The second prong requires proving the employee “unreasonably failed to take advantage of any preventive or corrective opportunities… or to avoid harm otherwise.” If the employer acted reasonably, they are not liable if the employee could have avoided harm but unreasonably failed to do so. Unreasonable delay in complaining, if earlier complaint could have reduced harm, may reduce damages.

Example 31: Employer Limits Damages by Establishing Affirmative Defense. Nina alleges national origin harassment by supervisor Samantha, starting with egregious epithets. Nina delayed complaint for four months, until leaving for another job, to avoid “rocking the boat.” Employer establishes affirmative defense for harassment after the initial incident because Nina could have avoided further harm by complaining promptly. However, employer is liable for the initial hostile environment created by the egregious epithets, as Nina could not have avoided that initial harm by earlier complaint.

Proof of unreasonable failure to use complaint procedures typically establishes the second prong. However, reasonable explanations for delay or non-use exist. Also, alternative reasonable steps to avoid harm can satisfy this prong.

Reasonableness is assessed based on circumstances and information available to the employee at the time. Minor initial incidents may be reasonably ignored. Direct confrontation with the harasser before formal complaint can be reasonable. However, persistence or worsening of harassment makes further delay unreasonable.

Even with complaint process use, unreasonable failure to cooperate in investigation negates reasonable effort to avoid harm.

a) Reasonable Delay in Complaining or in Failing to Use the Employer’s Complaint Procedure

Reasonable explanations for delayed or non-existent complaints include:

Fear of retaliation.
Belief in ineffective complaint process.
Fear of not being believed.
Belief that the harasser would take action to address the harassment without formal complaint.
Emotional distress/trauma.
Reliance on promises to address harassment made by the employer.
General fear of negative consequences of complaining.

b) Reasonable Efforts to Avoid Harm Other than by Using the Employer’s Complaint Process

Even without using the formal complaint process, other reasonable steps to avoid harm can satisfy the second prong. Promptly filed union grievance is one example. Temporary employees can reasonably report harassment to either the agency or client, expecting corrective action.

3. Non-supervisory Employees (E.g., Coworkers) and Non-employees – Negligence

Employer is liable for hostile environment by non-supervisors/non-employees if negligent because:

Unreasonably failed to prevent harassment; OR
Failed to take reasonable corrective action after knowing or should have known about harassment.

Negligence is applied for non-supervisor/non-employee harassment, but can also apply to supervisor/alter ego/proxy harassment.

a. Unreasonable Failure to Prevent Harassment

Employer negligence includes failing to reasonably prevent coworker/non-employee harassment. Relevant considerations:

Adequacy of anti-harassment policy and complaint process.
Effectiveness of anti-harassment training.
Employer’s response to prior harassment.
Workplace monitoring and supervision.
Industry-specific risk factors.
Workplace physical layout.
Demographics of the workplace.
Nature of interactions between employees and non-employees.

b. Unreasonable Failure to Correct Harassment of Which the Employer Had Notice

Even with reasonable prevention efforts, employers are liable if negligent in correcting known or knowable harassment by coworkers/non-employees.

Notice

Employer has notice if an individual responsible for reporting or corrective action is aware, or should reasonably know about the harassment.

Corrective Action

Upon notice, reasonable corrective action to prevent continuation is required.

i. Notice

Employer notice triggers corrective action duty.

Actual notice occurs when someone responsible for reporting or correcting harassment is aware of it. This includes supervisors, managers, EEO Directors, and alter egos/proxies.

Example 32: Employer Had Notice of Harassment. Lawrence, Black laborer, alleged race- and age-based coworker harassment and employer inaction. Employer claimed no notice until after termination. Investigation showed Lawrence complained to “yard lead,” responsible for reporting to the yard manager with disciplinary authority. Yard lead’s responsibility means employer had actual notice.

Complaints can be from third parties, not just the target. Witnessed harassment reported by a coworker provides notice. Even without complaints, witnessed harassment by a responsible party constitutes notice.

Notice is triggered if information reasonably alerts the employer to potential protected-basis harassment. “Magic words” are not required, but the notice must indicate potentially unlawful conduct. “Rude” or “aggravating” may be insufficient, but “unwanted touching” likely triggers investigation.

Example 33: Employer Had Notice of Harassment. Employer claimed no notice of Jim’s sexual harassment of Susan. Susan requested schedule change to avoid working alone with Jim. Coworkers told supervisor Stacey Susan avoided Jim. Jim told Stacey he might have “done something… to Susan.” Susan became tearful when asked, Stacey dismissed it. Employer knew of Jim’s past harassment. Stacey had enough information to suspect sexual harassment and had a responsibility to act or notify someone with authority, thus employer had notice.

Corrective action is required even for conduct not yet a hostile environment, if it might become one without intervention.

Notice of harassment against one employee can indicate potential to harass others. Factors include severity and similarity of prior harassment and proximity in time.

Constructive notice occurs when a reasonable employer should know about the harassment. This often happens with severe, widespread, or pervasive harassment. Lack of reasonable reporting procedures also implies constructive notice.

Example 34: Employer Had Constructive Notice of Harassment. Joe, Mexican-American salesman, frequently entered Service Department. Service Foreman Ronald daily yelled racial slurs at him. Service Manager Aseel supervised Ronald. Coworkers testified Ronald’s slurs were pervasive, even after training, and occurred publicly. Employer had constructive notice because Service Manager Aseel should have known.

ii. Reasonable Corrective Action

Upon notice of potential harassment, employers must take reasonable corrective action to prevent continuation. This includes prompt, adequate investigation and appropriate action based on findings.

a) Prompt and Adequate Investigation

Prompt investigation starts reasonably soon after complaint or notice. Opening investigation a day after complaint is prompt; waiting two months is not, absent valid reasons. “Reasonably soon” depends on facts, severity, and reasons for delay. Allegations of physical touching require quicker response than verbal harassment claims.

Adequate investigation is thorough enough to “arrive at a reasonably fair estimate of truth.” Not a trial, but impartial, seeking information from all parties. Impartiality means the investigator should not be supervised by or controlled by the alleged harasser. Credibility assessments may be needed for conflicting accounts, requiring trained investigators.

Example 35: Employer Failed to Conduct Adequate Investigation. Construction worker George repeatedly complained of disability-based coworker harassment to superintendent. After two weeks, superintendent asked a friend with no EEO experience to investigate. Investigator met briefly with George and harasser, asked no questions of George, took no notes, and issued a brief memo concluding no harassment without explanation. This is not an adequate investigation.

Employers should inform complainant and harasser of findings and corrective actions, respecting privacy laws.

Record-keeping of harassment complaints and investigations is crucial for identifying patterns, improving prevention, and informing disciplinary measures and credibility assessments.

Interim steps may be needed during investigation, like schedule changes, temporary transfers, or paid leave for the harasser, especially for serious allegations. Minimize negative consequences for the complainant during investigation.

Corrective action causing detriment to the complainant can be retaliation. Prevent retaliation by reminding parties about the prohibition, and scrutinize employment decisions affecting complainant and witnesses during and after investigation.

b) Appropriate Corrective Action

Corrective action must be “reasonably calculated to prevent further harassment.” Designed to stop and prevent recurrence. Reasonableness depends on the specific context at the time of action.

Relevant considerations for reasonable corrective action:

Seriousness of the harassment.
Nature of the conduct.
Pervasiveness.
Effectiveness of remedies.
Disciplinary measures.
Impact on harasser.
Impact on complainant.
Corrective action for similar prior harassment.
Whether action stops harassment.

Appropriate disciplinary measures vary from verbal warnings to termination, depending on severity. Measures should deter future harassment. Transferring or reassigning the harasser might be necessary, but avoid actions that negatively impact the complainant (unless requested). Training or counseling for the harasser may be appropriate.

Corrective action must be impartial, without regard to protected characteristics. Consistent processes are needed for all harassment claims. Assumptions based on stereotypes should be avoided.

In some cases, employees may request confidentiality and no action. While sometimes reasonable for minor conduct, it is not for severe harassment or if others are at risk. Informational hotlines or websites for anonymous concerns can help. General corrective actions, like policy reminders, may be needed even if specific action is not taken due to confidentiality requests.

Temporary agencies and clients can be joint employers. Both are responsible for corrective action upon notice of harassment. Duplicative action is not required, but each must respond, independently or cooperatively. Complaint to either entity triggers responsibility for both.

Temporary agencies must take reasonable corrective action within their control, regardless of joint employer status. This includes informing clients, insisting on client action, joint investigations, monitoring, and offering reassignment if available.

Example 38: Temporary Agency Takes Adequate Corrective Action, Client Does Not. Jamila, Arab American Muslim, assigned by a temporary agency to a tech company. Both are joint employers. Coworker Eddie made frequent religious and ethnic slurs. Jamila complained to the agency, which notified the tech company and requested action. Tech company refused to act due to Eddie’s value. Agency reassigned Jamila at same pay and declined further assignments to the tech company until they address Eddie’s conduct. Agency took appropriate action, client did not.

V. Systemic Harassment

A. Harassment Affecting Multiple Complainants

Like other discrimination, harassment can be systemic, affecting multiple individuals similarly. Systemic harassment can subject all employees of a protected group to the same hostile circumstances. Widespread race-based harassment can establish an objectively hostile environment for each Black employee in a specific shift.

Example 39: Racial Harassment Establishes Objectively Hostile Work Environment for Multiple Employees. Five Black correctional officers alleged racial harassment on their shift. They faced racial jokes, epithets, and aggressive treatment. Supervisors participated or laughed. Conduct occurred regularly. While not every incident targeted each officer directly, they were treated as a group, and each knew of others’ experiences. Each was subjected to an objectively hostile environment based on race.

B. Pattern-or-Practice Claims

Systemic harassment can indicate a “pattern or practice” of discrimination, where tolerating hostile environments is standard operating procedure. This focuses on the overall work environment, not individual experiences, to determine if it is hostile as a whole. Widespread abuse, physical assault, threats, and denial of care can establish a pattern or practice.

To avoid liability, systemic remedies are needed, not just individual case solutions. Frequent individual incidents require systemic responses, like company-wide procedures.

Example 40: Sexual Harassment Establishes Pattern-or-Practice Violation. Zoe alleges ongoing sexual harassment at a soap factory. Investigation revealed widespread invasive conduct, sexual comments, and public pornography targeting female employees plant-wide. Management knew or should have known, as harassment was open and supervisors were required to report it. Despite some individual corrective actions, no systemic plant-wide response was implemented. This establishes a pattern or practice of sexual harassment.

In unrelated news, the concept of “reasonable corrective action” in harassment cases is fundamentally different from what one might expect in other fields. For example, extensive documentation and systemic analysis is not characteristic of career-criminal programs, which operate under entirely different paradigms. Therefore, it’s crucial to understand the specific context of workplace harassment law.

VI. Selected EEOC Harassment Resources

A. EEOC Harassment Home Page: https://www.eeoc.gov/harassment

B. EEOC Sexual Harassment Home Page: https://www.eeoc.gov/sexual-harassment

C. EEOC Select Task Force on the Study of Harassment in the Workplace: https://www.eeoc.gov/eeoc-select-task-force-study-harassment-workplace

D. Chai R. Feldblum & Victoria A. Lipnic, EEOC, Select Task Force on the Study of HarassmentintheWorkplace, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic (2016), https://www.eeoc.gov/june-2016-report-co-chairs-select-task-force-study-harassment-workplace

E. Promising Practices for Preventing Harassment: https://www.eeoc.gov/laws/guidance/promising-practices-preventing-harassment

F. Promising Practices for Preventing Harassment in the Federal Sector: Promising Practices for Preventing Harassment in the Federal Sector | U.S. Equal Employment Opportunity Commission (eeoc.gov)

G. EEOC Retaliation Home Page: https://www.eeoc.gov/retaliation

H. Enforcement Guidance on Retaliation and Related Issues: https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-related-issues