What is Workplace Harassment and What Can You Do About It?
Employees are mistreated all the time. Employees can be subjected to all kinds of mistreatment at work including mean, crude, and unfair bosses. Most people have had to deal with rude behavior by co-employees.
Unfortunately, Florida is an employment-at-will state. That means, under most circumstances, an employer can do whatever they want as far as the way they treat their employees. No matter how unfair the employer’s treatment of an employee, in a lot of circumstances there’s nothing the employee can do about it.
While just “general” harassment in the workplace is not actionable, employees do have rights with regard to harassment if the harassment is based on what is called a “protected class.” The protected class is a group of persons which the employment civil rights laws protect. Protected classes include protection from harassment based on sex, age, race, handicap/disability, national origin, and religion. Therefore, if an employer harasses you or treats you rudely and unfairly because you are a woman, because of your color, or because of your membership in another protected class, then you may have rights against your employer.
The most typical form of harassment is what is called a hostile environment. The federal and state laws make it unlawful for an employer to subject an employee to a hostile environment based on the above-mentioned classes. A typical hostile environment claim involves sexual harassment. That is where a woman is subjected to inappropriate comments and activities based on her sex. The typical hostile environment claim includes men talking about sex, telling sexual jokes, touching a woman anywhere on her body, giving shoulder rubs, asking a woman out on a date, having naked pictures or pornographic pictures on a computer, etc.
The United States Supreme Court has stated that the harassment laws are not a civility code. Therefore, isolated inappropriate comments, no matter how offensive or rude, usually aren’t enough to bring a claim for a hostile environment. To state a legal claim for a hostile environment, the conduct has to be either severe or pervasive. For instance, if a woman is sexually assaulted one time at work, that might be severe enough to state a claim of hostile environment. In cases where there is no physical contact, usually a woman has to show that the sexually inappropriate comments were constant, even on a daily basis.
If you are subjected to a hostile environment, the courts say that before you can bring a legal claim, you should complain about the harassment to your employer. If an employer has a harassment policy, you should follow that policy and complain to the human resources department, your manager, or even the owner or president of the company. If you unreasonably fail to complain, an employer can defend your legal case by saying that you did not complain even though they had a harassment policy.
One of the common issues in a harassment lawsuit is whether or not the employer’s policy was in compliance with the law. Just having a written policy is not enough for the employer to protect itself from liability based on its harassment policy. Also, if the person who is harassing you is an officer or president or managing agent of the corporation, sometimes that will cancel out the employer’s defense of having a policy.
If you complain about harassment and you are retaliated against, you may have a retaliation case against your employer. It is unlawful for an employer to retaliate against an employee for complaining about harassment or discrimination. To have a valid retaliation case, the employee has to have a reasonable belief that they were subjected to harassment or discrimination. Therefore, even if the inappropriate conduct does not rise to a legally sufficient hostile environment claim, for instance because there are not enough comments, if a reasonable person would have thought they were a victim of harassment, then you can still bring a claim for retaliation.
Typical retaliation includes being demoted, being ostracized at work, being harassed, etc. This can include being assigned menial tasks which the employee was not forced to perform before, being taken away choice projects or commission opportunities, etc. The ultimate form of retaliation is termination.
Usually, the best course of action is to write down all the incidents of harassment, and then complain to the employer through the internal procedures. If that does not work, then you may want to file an official charge of discrimination with the government. This includes the EEOC or the Florida Commission on Human Relations. It is important that you see a lawyer before doing that. If you do not file the charge properly, and then wait an appropriate period of time before then filing a lawsuit, your case could be dismissed or kicked out by the judge for procedural reasons.
Also, you may want to speak to an employment lawyer to determine whether or not the harassment you are being subjected to states a cognizable legal claim in Florida and how you should proceed. Some employees may believe that, because they are being subjected to unfair treatment, they have a hostile environment or harassment claim even when they don’t.
If you believe you are the victim of workplace harassment or retaliation, you should talk to an employment lawyer to determine what your rights are and what your legal remedies are. Typically, a charge of discrimination is filed with the government, then a lawsuit is filed. Once you file a lawsuit, you would be seeking damages, which is what a jury would award if they side with you. The damages can include lost wages, emotional pain and suffering, mental anguish, and things like that. Also, a prevailing plaintiff in a harassment or retaliation lawsuit is entitled to have the defendant employer pay all of your attorney fees. That can be a deciding factor in making the employer want to resolve or settle your case before your case actually goes to a jury. This is because they know that if you recover anything at trial, they would have to pay all of your attorney fees.