When an individual is going through a divorce, they may, unfortunately, face workplace harassment in their workplace. This can make an already difficult time even more difficult for the individual enduring the harassment.
A hostile work environment can be created when an individual in a workplace engages in harassment that makes it impossible for another employee to perform their job duties. The following individuals can create hostile work environments:
- Coworkers;
- Supervisors;
- Managers;
- Repeat clients;
- Vendors;
- Visitors;
- Contractors; or
- Other employment staff who may have significant contact with the employee.
Federal laws treat workplace harassment as a type of discrimination. These laws are enforced by the Equal Employment Opportunity Commission (EEOC).
There are many different types of employment discrimination. Federal laws prohibit discrimination that is based on:
- Race and ethnicity;
- Gender, including sexual orientation;
- Religion;
- National origin; or
- Disability or genetic predisposition.
Additionally, it is illegal to harass an individual who is a whistleblower or who is cooperating with an investigation or other type of legal proceeding. It is important to note that some county or city governments as well as states have their own anti-discrimination and civil rights laws.
Federal workplace harassment laws will only apply in certain companies that have more than 15 employees. The city, county, or state laws will apply even when the federal laws do not.
Workplace harassment can arise for many reasons during a divorce. It is very important for the victim to address the issue as soon as they possibly can.
How Do I Recognize Workplace Harassment?
Hostile work environments can present themselves in many different ways, including harassment or sexual remarks that creates an environment of intimidation and fear. The qualifications for hostile work environments can vary by workplace.
There are two main categories of workplace harassment:
In the majority of cases, a single harassing behavior or offensive comment will not be sufficient to demonstrate a hostile work environment unless that single act was extremely dramatic. Instead, an individual will be required to show that a reasonable individual would have found the behavior to be hostile, pervasive, and intimidating.
If a reasonable individual would have been upset by the alleged harassment, the victim will likely not succeed with their claim. Examples of sexual conduct that may form the basis of a claim for hostile work environment sexual harassment include:
- Asking an employee sexually intrusive questions;
- Making lewd jokes, sexual gestures, or comments;
- Showing, sending, or requesting sexual notes, emails, photos, etc.;
- Making sexual remarks about how an employee looks or dresses;
- Intentionally exposing oneself to another employee; and
- Displaying sexual content in the workplace.
These are actions an individual can watch for to identify signs of harassment during divorce. If an individual believes they may be being harassed in the workplace during their divorce, they should consult with an attorney immediately.
What Are the Legal and Human Resources Implications for Employers?
If workplace harassment is occurring to employees during their divorce, there are legal and human resources implications for employers. An individual’s employer may be held liable for the harassment.
There are different rules that may apply, depending on the role of the employer company of the individual who was engaging in the harassment. Employers will be liable for harassment by a supervisor that results in a negative employment action against that employee, such as:
- Termination of employment;
- Failure to promote or hire; and
- Wage loss.
If harassment from a supervisor creates a hostile work environment, an employer will only be able to avoid liability in one way by showing the following:
- The employer took reasonable steps to attempt to prevent and correct the harassing conduct; and
- The employee unreasonably failed to take steps their employer suggested to prevent or correct the harassment.
If the harasser was a contractor, customer, or co-worker, the level of proof needed to hold the employer liable will be different. In cases that involve a co-worker, a victim must show that their employer:
- Knew or should have known about the workplace harassment; and
- Did not take appropriate measures to stop the harassment.
The employer’s response to a harassing situation will be examined, including whether they took any steps to correct the issue. If the employer was aware of the issue but did not take any actions, such as investigating or intervening, they are more likely to be held liable for a hostile work environment.
Employers should have reporting policies and procedures for their employees to report any type of harassment. In addition, there should be clear policies and procedures for the human resources department to investigate these types of claims.
How Can Employers Support Employees?
Employers can support their employees by creating a safe and supportive environment where employees are comfortable addressing any issues that may arise, including workplace harassment. Employers should also provide resources for employees that are affected by workplace harassment.
This may include providing local and online resources as well as steps the victim can take to remedy their situation quickly and effectively. It is best for all parties involved if they can remedy the situation at the workplace level and not be required to file a claim with the EEOC or even a lawsuit.
How Can Workplace Harassment Be Prevented?
Workplace harassment can be prevented by swift action by victims and employers as well as clearly defined policies and procedures that outline the consequences of engaging in workplace harassment. If an individual believes they are being harassed at work, they should keep any communications as well as notes regarding conversations they had involving harassment or dealing with the harassment.
If an individual believes they are being harassed at work, if they are comfortable, they are encouraged to tell the harasser directly that their conduct is not welcome and must stop immediately. In some cases, the harasser may not be aware their behavior is offensive.
If it continues, the employee should report the harassment to management as soon as they can. This may help prevent the escalation of the hostile work environment and can provide management with an opportunity to address the issue.
Employers can work to prevent workplace harassment by educating all of their employees on the topic and how to avoid engaging in harassment at work. If employees are aware of what constitutes workplace harassment, they can consciously avoid it, especially if another employee is going through a difficult time, such as a divorce.
How Are Workplace Harassment Cases Resolved?
It may be difficult for an individual to prevail in a harassment claim if they did not report the offensive behavior to their employer. As noted above, the individual must show that their employer knew or should have known about the behavior.
If an individual cannot resolve their workplace harassment issue at the workplace level, the next step is to file a complaint with the EEOC. The EEOC will then investigate their complaint and may file a lawsuit on their behalf.
Before an individual can file a federal discrimination lawsuit, an individual must obtain a Right to Sue letter from the EEOC. Federal laws outline a specific administrative complaint process for discrimination claims.
If an individual can prove a hostile work environment claim, they may be entitled to compensatory damages for losses they suffered as a result of the hostile work environment. This may include compensation for lost wages, which may include benefits and back pay, that are a result of the individual’s inability to work.
In a case where a hostile work environment caused an individual to lose their employment, compensatory damages may be awarded to put the individual back in the same position that they would have been in if they had not lost their job.
A court may reinstate the employee back to their position and order the termination of the offending employee. In rare situations, an employer may be required to pay punitive damages to the employee if they engaged in outrageous intentional conduct that created a hostile work environment.
Should I Consult with a Lawyer?
If you believe you may be experiencing workplace harassment during your divorce, you should consult with a family lawyer as soon as you can, both to help remedy the issue and provide you with options and support. Your lawyer will be able to advise you whether or not the conduct likely rises to the level of a hostile work environment and what laws apply to your situation.
By consulting with a lawyer as soon as possible, you will also learn what communications and notes to keep as evidence to support your case. Your lawyer will guide you through the EEOC complaint process and represent you in court, if needed.
