Personnel Practices: Preventing and Addressing Workplace Harassment

Although conflict is bound to arise from time to time in every workplace, conduct that rises to the level of unlawful harassment can subject employers, and potentially individual supervisors, to liability.  In several recent lawsuits in Rhode Island and neighboring states, employees have been awarded up to hundreds of thousands of dollars in settlements and jury verdicts where employers have failed to appropriately address harassing behavior and/or failed to prevent harassment from occurring in the first place.  Although employers should always seek to prevent harassment on any basis, harassment on the basis of the victim’s membership in a protected class is prohibited under federal and state law.

Specifically, federal and state law prohibit workplace harassment on the basis of an employee’s race, color, religion, gender (including pregnancy), national origin, age (40 or older), disability, veteran status, or genetic information.  In addition, Rhode Island law prohibits harassment on the basis of sexual orientation and gender identity or expression.  According to the federal Equal Employment Opportunity Commission (, harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Gentle teasing and minor annoyances, particularly in isolated incidents, are not typically considered unlawful.  However, conduct that would be intimidating, hostile, or offensive to the average person is not permissible.  For example, harassment can be verbal (epithets, derogatory statements, slurs, and unwelcome jokes or teasing), physical (assault or physical interference with normal work), or visual (posters, cartoons, drawings).  In addition, unlawful harassment may take many different forms.  For example:

  • Unlawful harassment can be perpetrated by an employee’s supervisor, a supervisor who does not directly supervise the employee, an agent of the employer, a co-worker, or a non-employee.
  • An employee who is not directly subjected to harassing behavior, but who is otherwise affected by offensive conduct, may pursue a harassment claim.
  • Unlawful harassment may give rise to a claim even where the employee is not terminated from employment or otherwise economically injured, but where the employee is subject to a hostile work environment.

Although harassment claims are analyzed on a case-by-case basis, typically employers can be held liable for harassment by a supervisor where the harassment results in an adverse employment action, such as suspension, termination, or loss of a promotion.  Where a supervisor’s harassment of an employee creates a hostile work environment, an employer will be liable for such harassment unless the employer can prove that it implemented reasonable efforts to prevent harassment from occurring in the first place; that it took prompt action to correct the harassment; and that the employee failed to avail him or herself of corrective opportunities offered by the employer.  Where a non-supervisory employee has harassed another employee, an employer may be held liable if it knew (or should have known) that the harassment was occurring and it failed to quickly take appropriate action thereafter.

In order to address, and ideally prevent, unlawful harassment in the workplace, employers should implement and consistently enforce non-harassment policies stating that workplace harassment will not be tolerated and that individuals who engage in harassing behavior may be subject to immediate discipline.  In addition, employers should encourage employees to be on the lookout for instances of harassment and to report such issues swiftly. Employers should inform employees that no adverse action will be taken against them as a result of their participation in an investigation of workplace harassment.  Employers should also designate several different people to receive complaints of harassment, not just employees’ supervisors, in case an employee’s supervisor is perpetrating the harassment.  Such efforts will help create an environment in which employees feel free to voice concerns about workplace harassment without fear of retaliation or other adverse employment action, and will help employers avoid liability if harassment does occur.

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