One of the more difficult problems facing an employer in today's workplace is the notion of what constitutes illegal harassment. I've been involved in cases over the years where employees have charged harassment because an individual has suggested that they quit smoking, that perhaps they reduce weight to help a physical problem, that they "look funny at me", "wouldn't talk to me", "wouldn't go to lunch with me", and other inane ideas. These statements were advanced by employees in furtherance of their lawsuits, or charges of discrimination filed with appropriate civil rights agencies. Typically when the EEOC issues guidelines, regulations, etc., they tend to overreach and are anti-business. Over the course of the years the courts have given us a reasonably decent picture of what constitutes sexual harassment. The EEOC has come up with some proposed guidelines for harassment in general, which would include age, disability, national origin, gender, religion, race, etc. Additionally, there is a pending United States Supreme Court case which would give some additional assistance in the sexual harassment area.

With regard to the other types of harassment, the EEOC would adopt a "reasonable person in the same or similar circumstance" test to determine whether or not the conduct is sufficient to create a hostile work environment insofar as race, religion, gender, national origin, age or disability is concerned.

In general, the various antidiscrimination statutes require employers to maintain a working environment free of harassment. For any sort of hostile environment or "harassment" to be illegal, it must be sufficiently severe or pervasive as to alter the conditions of employment and create an abusive working environment. Proposed EEOC guidelines define harassment as verbal or physical conduct that "denigrates or shows hostility or aversion towards an individual" because of that individual's "race, religion, gender, national origin, age or disability." That standard is broadened to conduct by a harasser based on characteristics of an individual's relatives, friends or associates. According to the EEOC guidelines, harassment may include the following conduct relating to race, color, religion, gender, national origin, age or disability:

1. Slurs 2. Epithets 3. Negative stereotyping 4. Intimidation 5. Hostile acts 6. Threats 7. Denigrating or hostile written or gaphic material posted or circulated in the workplace.

The standard to be applied is whether or not the conduct taken in its totality constitutes harassment in the opinion of a reasonable person in the same or similar circumstance. That is to say would a reasonable person in similar circumstances find the conduct intimidating, hostile or abusive? While some courts have adopted a reasonable woman's standard for assessment of sexual harassment conduct (we've already treated that topic in an earlier showroom article), the EEOC standard of nonsexual cases would still be a reasonable person.

As to employer liability, the guidelines would hold an employer liable when the employer "knows or should have known" of the harassment and fails to take immediate and appropriate corrective action. Under the EEOC guidelines, an employer would also be liable for workplace harassment if the conduct is perpetrated by a supervisor, regardless of whether top management knew or should have known. The courts have not gone that far, and I suspect given the bit more conservative bent on the part of federal judges, I would doubt that that standard will find it into our case law. We all must remember that simply because an administrative agency takes a position, that position is not the same as legislative or court interpreted "illegal" conduct. The EEOC is more apt to try to hold an employer liable if the employer has failed to institute an explicit policy against harassment that is clearly and regularly communicated to employees. Additionally, if an employer fails to establish a reasonably accessible procedure for em
ployees to make complaints known to appropriate officials who are in the position to act on them, the EEOC would be more harsh with those employers.