Unwelcome comments, jokes or behavior at work might be annoying to the recipient, but they aren’t always prohibited under the definition of illegal harassment. Nevertheless, they sometimes violate the workplace harassment policies defined in a company’s policy manual and employers have some recourse to punish violators.

What may look innocuous to an outside observer could cause a whole lot of friction in an organization, so employers are well within their rights to take action against employees who make the workplace uncomfortable for others. But the definition of illegal harassment is pretty specific.

Is it harassment? Find out by downloading our Workplace Harassment Cheat Sheet.

Is it Illegal?

In order for harassment to be illegal, it has to create a hostile work environment for someone from one of the “protected classes” as defined by the EEOC. The victim is subjected to unwelcome treatment based on their age, race, sex, national origin, disability, or other protected status. But to be considered harassment, the behavior has to be also severe or pervasive.

“Pervasive just means it has to happen a lot or the whole workplace is permeated with the conduct,” explains Robin Shea, a partner at employment law firm Constangy Brooks and Smith, LLP. “Severe doesn’t have to be pervasive,” she says. “If somebody traps you in a broom closet and sexually assaults you, one time is enough to be harassment and create a hostile work environment.”

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Another type of illegal harassment that is less common, where the harassment can result in a “tangible job detriment”, is quid pro quo harassment. “The classic case is where a supervisor tells an employee ‘sleep with me or I’ll fire you’. We call that quid pro quo because you’re either getting a reward for accepting the sexual advances or you’re being punished because you refused,” says Shea.

Discriminatory Motive

Perhaps the most dangerous aspect of harassment that doesn’t fall into the illegal category is its potential to provide proof of a discriminatory motive, should a discrimination complaint arise. A supervisor who makes a disrespectful comment about an employee in a protected class, even if the comment is not pervasive or severe, is exposing the company to a discrimination case.

"Even if it’s not harassment or not illegal, comments about other people based on sex or race or protected characteristics are very strong evidence of a discriminatory motive," says Shea.

If the subject of the comment is terminated in a downsizing or is passed over for a promotion, for example, he or she could use the comment as proof of a discriminatory motive. It’s imperative that a company’s internal policies take this into consideration.

Internal Harassment Policies

“I recommend that employers have internal policies that are probably a lot stricter than the legal definition,” says Shea. “And based on my experience, most internal policies will go way beyond prohibiting unlawful conduct and they’ll actually say ‘we want a work environment where people feel comfortable and they enjoy coming to work, and we want all employees to treat each other with respect’,” she says.

So somebody can be guilty of harassment under the company policy but still not be guilty of illegal harassment in the true sense of the term. That doesn’t mean it’s any less important to the company’s culture. In fact, it may be more dangerous because it often goes unreported.

“If it’s not illegal we still might want to take action against the employee who is rude or inappropriate at work…” says Shea. Repeated bad behavior creates a hostile work environment and discourages employees from reporting, especially if the behavior isn’t illegal.

When employees witness bad behavior, especially when management is either involved or ignoring the issue, it sets the stage for a bad work environment.  “It discourages them from reporting it, because they don’t think it’s going to do any good,” says Shea. “That’s a dangerous thing. You want employees to always feel they can come forward if they see inappropriate behavior going on at work.”