Pre Settlement Funding on Job Harassment Litigation
Workplace harassment covers a broad range of topics, and is defined as the act of belittling or any threatening behavior directed at either an individual worker, or a group of workers.
Workplace harassment is generally classified under two categories: physical harassment and emotional harassment. While the former is more obvious than the latter, the two do not differ in the severity of effects to the victim.
In fact, any form of discrimination – gender, race, religious, sexual, or disability – also constitute as workplace harassment, falling under the emotional abuse. On the other hand, violence or assault, sexual harassment and bullying are forms of physical abuse.
Based on a legal perspective, harassment is defined as a conduct that is based on the victim’s protected characteristic (race, gender, age, disability discrimination, etc.), offensive, unwelcome, and is severe or persistent enough to affect the terms and condition of the victim’s employment, as well as affecting his or her work progress, thereby hindering him or her from successful advancement in the career. Ultimately, harassment limits the capabilities of the victim in the workplace.
Several federal laws (Title VII, Americans with Disabilities Act, Age Discrimination in Employment Act, Equal Pay Act, Genetic Information and Nondiscrimination Act, and Civil Rights Act of 1866), state and local laws have been implemented to protect the rights of victims by forbidding discrimination.
There are several ways to handle workplace harassment, like proactively trying to resolve the concerns internally, and even involving the company’s human resources department to intervene and find a resolution.
However, there are cases in which workplace harassment cannot be stopped even with internal intervention. In cases where the situation does not improve, victims can opt to file an administrative charge with the Equal Employment Opportunity Commission, or any similar state agency.
If no improvements occur, victims can opt to file a lawsuit. Actions made by the victim to remedy the problem that have been unsuccessful can help prove and support arguments made in the lawsuit, so long as there is proof of these actions. For more information on these actions, as well as workplace harassment, visit the employment harassment page.
Workplace harassment is the belittling or any threatening behavior directed at either an individual worker or a group of workers. Workplace harassment may include violence or assault, bullying, gender, race, religious, sexual, or disability discrimination.
From a legal standpoint, harassment is a conduct that is:
- Based on the victim’s protected characteristic
- Unwelcome, and
- Severe or pervasive enough to affect the terms and conditions of the victim’s employment
Harassment is a form of discrimination, which violates a number of federal laws. Harassment becomes illegal when it is based on the victim’s race, gender, age, disability, or other protected characteristic.
There are some characteristics that are determined by federal laws such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Genetic Information Nondiscrimination Act, and the Civil Rights Act of 1866, in addition to state and local laws the forbid discrimination.
Wikipedia defines workplace harassment as:
“Workplace harassment is also known by many other names. ‘mobbing,’ ‘workplace bullying,’ ‘workplace mistreatment,’ ‘workplace aggression,’ and ‘workplace abuse’ are all either synonymous or belong to the category of workplace harassment. Workplace harassment includes different types of discrimination and acts of violation that are not confined to one specific group. The wide-ranging types of workplace harassment can be loosely categorized into emotional and physical abuse. All of these forms of workplace harassment target various groups, including women, racial minorities, homosexuals, and immigrants. In essence, workplace harassment requires pluralistic understanding, because it cannot be delineated in one coherent and concrete definition.”
Acknowledging the difficulty of formulating a universal definition of workplace harassment, Ezer broadly defines workplace harassment as ‘irrational repeated behavior towards an employee or group of employees, which represents a health and security risk. Any act of discrimination or assault that systemically disadvantage the employees is considered workplace harassment. Workplace harassment can contribute to deterioration of physical and emotional health.
“According to Rosa Brooks, the concept of workplace harassment is based on two premises. Firstly, regardless of gender, race, sexuality or any other defining characteristic, every person should be given the right to be ‘free from abusive treatment in the workplace.’ With freedom from abuse given as a basic human right, any form of discomfort or discrimination in workplace becomes labeled as an act of harassment. Secondly, the issues caused by workplace harassment affect the victims in harmful ways. Discrimination in the workplace hinders victims from successful advancement in their careers, limiting the capabilities of the victim.”
Types of Harassment
There are several forms of harassment, which are ultimately divided into two categories: physical abuse and emotional abuse. While physical abuse relates to sexual assault and violence on the body, emotional abuse insinuates imposing stress and bullying.
Physical workplace harassment can come in a variety of practices. Sexual assault is one of the most known forms of physical harassment in the workplace. Wikipedia notes: “sexual assault becomes difficult to define, as the distinction between sexual harassment and consensual sexual behaviors is not finely delineated.”
In fact, a study conducted by the U.S. Merit Systems Protection Board in 1981 showed that among female government employees, 33 percent experience sexual comments, while 26 percent had unwarranted physical touching, and 15 percent were forced to go on dates.
In addition, “Nearly 10% had been directly pressured for sexual cooperation, and a similar percentage described repeated telephone calls and unwelcome letters or notes,” as stated by Louise F. Fitzgerald in “Sexual Harassment: Violence Against Women In The Workplace,” published in American Psychologist 48 no. 10.
Another form of physical workplace harassment is violence or assault. Workplace violence is defined by Wikipedia as:
“[…] Physical threats and assaults targeted at employees. There are two main perpetrators for workplace violence: criminal who approached as clients, and co-workers. The criminals assert violence through the forms of robberies and homicides, and the rate of homicides in the workplace has risen significantly over the past 20 years.”
On the other hand, workplace violence committed by co-workers have a tendency to be less obvious. According to a study by The Northwestern National Life in 1993, 15 percent of respondents faced physical attack at worth, while 14 percent of respondents reported getting physically attacked in the past 12 months. Acts of violence in the workplace include pushing or shoving, fistfights, and rape.
Emotional harassment goes by more unnoticed, in addition to being perceived as more socially acceptable. L. In “Emotional Abuse in the Workplace: Conceptual and Empirical Issues” published in Journal of Emotional Abuse 1, No. 1, L. Keashly defines emotional harassment as: “the hostile verbal and nonverbal behaviors that are not explicitly tied to sexual or racial content yet are directed at gaining compliance from others.” This means that emotional harassment is a practice wherein people’s actions are manipulated through social behaviors.
Bullying or mobbing is one of the most common types of emotional abuse. Dieter Zapf in “Organisational, Work Group Related and Personal Causes of Mobbing/bullying at Work” published in the International Journal of Manpower 20, no. 1-2, describes workplace bullying as “a long lasting, escalated conflict with frequent harassing actions systemically aimed at a target person.”
Workplace bullying includes:
“[…] False accusations of mistakes and errors, hostile glares and other intimidating non-verbal behaviors, yelling, shouting, and screaming, exclusion and the ‘silent treatment,’ withholding resources and information necessary to the job, behind-the-back sabotage and defamation, use of put-downs, insults, and excessively harsh criticism, and unreasonably heavy work demands designed to ensure failure.”
The 2014 survey by the Workplace Bullying Institute, also called the Zogby national survey, revealed that 27 percent have previously been faced with workplace bullying, while seven percent of employees were currently suffering from workplace bullying.
Not only that, but Pamela Lutgen-Sandvik noted that “more than 97% of nurse managers reported experiencing abuse, whereas 60% of retail industry workers, 23% of faculty and university staff, and 53% of business school students reported abuse at work.”
Handling Workplace Harassment
When an employee is faced with harassment or discrimination in the workplace, the employee has several options to take in order to protect his or her own rights. By following these actions, mistreatment may come to a stop, in addition to improving the work environment. If a lawsuit is the only viable option to stop such harassment, the following steps can help prove the case, make the harassed employee eligible to sue, and help in winning a successful workplace harassment lawsuit.
1. Talking to the Offender
It is a dreadful thing to have to talk to the person who is mistreating the employee or co-worker. But at times, the harassing party may not even be aware of the negative actions they are taking.
It’s important to be practical and get the behavior to stop, and the initial step to take is always to confront and clarify the issue with the involved party. From a legal standpoint, giving notice the party with the wrongdoing can help prove pertinent facts if the employee later files for a lawsuit.
In harassment cases, the party who is complaining of mistreatment or harassment will have to prove that the behavior was indeed unwelcome – it is important that the employee expresses great dislike or that the employee did not participate willingly to the mistreatment.
The best way to prove unwelcomeness with regard to harassment is to show that the employee had already addressed the matter with the harasser, and pointed out that the behavior was offensive. If situations show no improvement, it is best to address concerns through writing, with a copy kept for personal records. This can help serve as evidence for a lawsuit down the line.
2. Making A Complaint Within the Company
If confronting or talking to the harasser shows no signs resolution, or for in fear of personal safety that the harmed employee decides to forego his or her right to talk to the harasser, it is important to file a formal complaint internally.
In these cases, it is important to review the employee handbook and speak to a representative or associate in the human resources department who can ultimately help the mistreated employee on how to file a complaint regarding harassment or discriminations. It is pertinent to follow each and every instruction to the tea, and keep a copy of the complaint for personal records.
Through this method, the company is given the opportunity to investigate and actually resolve the problem while keeping the mistreated employee’s legal rights intact.
In cases of workplace harassment, holding the company liable (rather than just the harassing party) depends on whether or not the company was aware of the harassment, and was given the opportunity to investigate and resolve the harassment.
The company will be held liable when a superior associate — like a manager — is the harasser, and it ultimately led to a tangible action against the victim (i.e. being fired, demoted, or denied a raise or promotion).
However, if a co-worker or a superior associate that did not result in a negative work-related action against the harassed party is doing the actual harassment, the company can claim that they were not aware of the harassment.
Making an internal complaint allows the company to be aware of the issue, thereby eliminating the possibility of denial of the concern. This can also help in later lawsuit, which can help prove that the company was aware of the issue, puts them at liability to fix the problem and was unable to resolve it.
In cases of discrimination, an internal complaint also allows the company to be aware of the problem. If the company fails to take proper action to resolve or improve the workplace situation, the employee then has a stronger argument for punitive damages (damages intended to punish an employer for egregious behavior, which is often the largest portion of damages awards in a discrimination lawsuit).
3. File an Administrative Charge
Before a victim can actually file a discrimination or harassment lawsuit under federal law, the harassed employee must first file an administrative charge with the federal Equal Employment Opportunity Commission (EEOC), or any analogous state agency.
It is very important as well as a legal requirement that the administrative charge be filed before the lawsuit is a charge. When a lawsuit if filed before the administrative charge, the victim is, legally speaking, “exhausting” administrative remedies, resulting in a thrown out lawsuit.
In addition, several states also require victims to file an administrative complaint with the state’s fair employment practices agency prior to filing a harassment lawsuit based on state law.
After filing the charge with the EEOC, the agency will notify the company where the victim is working. There are various possibilities that can follow after this: the agency can either dismiss the charge, prompt an investigation, request that the victim and employer mediate or settle the concern, or take another form of action.
The agency will then finish the processing of the claim and ultimately issue a letter stating the victim’s right to sue, unless the agency decides to file a lawsuit in behalf of the victim – though it is a rare occurrence.
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