3 Common Types of Harassment in a Hostile Work Environment

In any workplace, working together as a team can be a challenging endeavor. Interpersonal incompatibility can create challenges—bullying, unkindness and personality conflicts can render a team of top performers dysfunctional and ineffective. When these negative actions escalate to the level of harassment that creates a hostile work environment, employers may face liability.

Both employees and employers must understand the common types of workplace harassment so that the team can work collectively to create a safe and productive space. If everyone is on the same page about boundaries and behavior, a thriving company culture can develop.

The line between the legal definition of harassment and general unkindness can be a blurry one. While no healthy workplace should tolerate any level of cruelty or hostility, this blog post will clarify the legal definition of harassment and types of harassment you may encounter at work.

While bullying and inconsiderate behaviors are problematic in their own right, harassment specifically refers to unwelcome conduct based on factors such as race, sex, religion or disability. According to the U.S. Equal Employment Opportunity Commission (EEOC), harassment “is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).”¹ A hostile work environment where harassment based on a protected characteristic, such as race, sex, religion, or age, is severe or pervasive, creating an intimidating, offensive, or abusive atmosphere that interferes with an employee’s ability to do their job.²

In a hostile work environment, only certain conduct rises to the level of being legally prohibited. Bullying or incivility is not enough to trigger protections. The unwanted behavior must be severe and pervasive enough to alter the terms and conditions of employment. Further, mild insults or social exclusion would not be sufficient to trigger a hostile work environment lawsuit. The conduct must be such that a reasonable person would find it objectionable and offensive.

Employers become liable for workplace harassment if it is perpetrated by a supervisor and results in negative employment outcomes, including termination, denial of a promotion or a loss of income.¹ Employers may be liable for a hostile work environment even if the conditions are not created by a senior manager or executive. Lower-level line employees, customers or vendors can create liability for employers if the company permits severe, pervasive, unwanted harassment to occur.

Employees can bring a lawsuit for a hostile work environment on the basis of disability, race, pregnancy, sexual orientation, gender identity, national origin, religion and genetic information status, among other grounds. Since 1986, when the Supreme Court decided Meritor Savings Bank v. Vinson, courts have recognized that sexual harassment could create a hostile work environment and provide the ground for a claim of sex discrimination. In state-based anti-discrimination law, there may be even more grounds that are viable.

Hostile work environment lawsuits operate on the following theory: the behavior in question makes working so terrible for the employee that the harassment constitutes an adverse employment action similar to demotion, termination or reassignment. It is important to note, however, that negative feedback from a supervisor does not constitute a hostile work environment. It is possible to dislike treatment or to feel uncomfortable with coworkers without these experiences meeting the criteria for different types of harassment. In these cases, it is still possible for the employee to seek intervention from leadership or the human resources (HR) team to improve work-life quality.

Liability stemming from a hostile work environment may arise from different kinds of harassment. The following sections explore three common types of workplace harassment.

Verbal harassment covers a range of hostile or inappropriate remarks, including insults, slurs, offensive jokes, demeaning statements and unreasonable criticism.³ Among the different types of harassment that occur in hostile work environments, verbal harassment can be the most challenging to prove in a legal sense. Discrimination can be proved by direct evidence or circumstantial evidence in anti-discrimination law. Verbal harassment can be difficult to prove because often there is no direct evidence—no written “smoking gun” that documents its existence. Often, individuals who are subject to verbal harassment may experience it during times of isolation, at times when there are no witnesses.

This type of harassment can result in feelings of shame, isolation and even PTSD, so it’s important to take decisive action quickly.⁴ To ensure that employees are protected from verbal harassment, consider creating clear policies and processes for reporting. Also, consider providing training on workplace harassment. This ensures that employees will report verbal harassment to management when appropriate so that internal mechanisms can be deployed to correct it. Employees who do not receive a response to their efforts to report and stop verbal harassment may escalate their claim by filing a charge with the EEOC and/or the relevant state or local human rights commission to receive a right-to-sue letter.

At a Florida restaurant, a Mexican employee endured ongoing verbal harassment related to his race and country of origin. After his employer failed to act, he filed a complaint with the EEOC, which took the case to court. He was ultimately awarded $45,000 in monetary damages, and the company was required to adopt new training and policies to ensure the protection of future employees.⁵

Physical harassment is the most overt form of harassment that can occur in hostile work environments. While it includes punching, hitting, shoving and grabbing, it can also involve more subtle actions such as unwanted touching and physical intimidation.⁶ Physical aggression comes as an escalation from more minor incidents, so any kind of unwanted or aggressive physical contact should be reported and dealt with immediately.

Employers face a legal obligation to respond to claims of all different types of harassment with “reasonable corrective action.” If action is not taken and the conduct violates federal EEOC law, then the employer can be held liable for the physical harassment.⁶ In some circumstances, physical harassment may constitute a crime in the workplace as well, subjecting the company to a host of legal problems and negative publicity.

At a McDonald’s franchise location in 2022, a manager was accused of grabbing and biting employees. The manager was fired after five years of reports. Ultimately, the owner of the franchise location was found to have ignored credible reports of this harassment and was held liable to pay out over $1.6 million in damages to the victims of harassment.⁷

Visual or written harassment involves using materials such as drawings, notes, memes, emails or graffiti to make demands of, embarrass or intimidate a person. This type of harassment has become more common in the digital age, with social media often wielded as a weapon that can “escalate even minor incidents into public humiliation.”⁸ Concerningly, evidence suggests that this is now the most common form of workplace harassment, particularly as related to workplace gender discrimination.

The #MeToo movement set many legal precedents for the qualifications for visual harassment, including sanctions on AI pornography, manipulated images and sexually charged cartoons and memes. Laws pertinent to these issues vary by state.⁹

Social media has presented a host of challenges in the workplace. Liability for employers can depend on on-duty versus off-duty use of social media, among other issues. In Tulane University’s Master of Jurisprudence in Labor & Employment Law program, students take a course entitled, Social Media Issues in the Workplace, as part of the core curriculum to dig deeper into this complex subject.

Studies have shown that chronic workplace harassment and, in particular, sexual harassment have long-term associations with lower income, alcohol misuse and poor self-image.¹⁰ Additionally, companies perceived as playing host to different types of hostile work environments often experience high turnover rates and a dysfunctional company culture.¹¹

It is directly advantageous to companies to prevent hostile work environments from developing, not only from an ethical perspective but also from a financial perspective, as doing so can help companies avoid costly turnover, re-training and lawsuits.

Fundamental elements of HR employment law serve to ensure at least a basic level of compliance. It is crucial for HR departments to work collaboratively with leadership teams to put processes in place that support employees who speak up and encourage openness and honesty.

Creating a positive work environment starts with establishing the company values. What is fundamentally important to the people who work in this space? What energizes them?

Then, work to affirm those values and make them actionable. How can your team encourage respect and empathy? In what ways will you celebrate diversity and inclusion?

Finally, set up processes for continuous monitoring and feedback, and reward employees for their honesty. Foster a culture of communication and collaboration so that any problems are called out quickly and can be addressed efficiently. Expect growing pains, and know that creating a positive work environment is an ongoing process.

Employers should adopt clear policies and practices that prohibit workplace harassment. In addition, employers may take advantage of the “Ellerth-Faragher” defense. The Ellereth-Faragher defense provides an affirmative defense to employers who may be subject to vicarious liability for workplace harassment claims. This “safe harbor” defense is named after two Supreme Court cases, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton.¹²

Employers who are accused of workplace harassment may invoke the Ellerth-Faragher defense if:¹¹

• The employer has taken no tangible negative employment action against the plaintiff. If a plaintiff reports harassment or experiences harassment and it results in discharge, demotion, reassignment or some other negative tangible action, then the Ellerth-Faragher defense is unavailable. 
• The employer has taken reasonable care to prevent workplace harassment. Preventing workplace harassment in such cases has often involved following such best practices to prevent and deter harassment, such as having a written policy prohibiting such harassment, creating processes and procedures for reporting such harassment and providing workplace training about harassment.
• The plaintiff employee, reporting harassment, failed to exhaust internal remedies for the harassment. For example, if the employer has created a policy and process for reporting harassment and the plaintiff does not take advantage of it, the employer may have access to the Ellerth-Faragher defense.

Employers can use the Ellerth-Faragher defense to argue against vicarious liability in workplace harassment cases.

Combat verbal, physical and visual harassment in the workplace by becoming the change you want to see. The online MJ in Labor & Employment Law (MJ-LEL) program at Tulane Law School offers a rigorous and reputable education in a flexible online format. Our expert faculty and practical coursework will help you develop the skills and knowledge you need to improve workplaces, making them safer, healthier and more inclusive.

If you are ready to take the next step in your professional journey, review the admissions requirements for the MJ-LEL program, make an appointment to speak with a member of our admissions team, or contact Tulane Law School today.