How do you know if “harassment” is based on something protected?
In employment law, there is a big difference between “harassment,” which is based on a protected trait, and “bullying.” In Michigan, bullying on its own is generally not illegal. This means that coworkers and even supervisors can be outright mean, and can insult and demean and mistreat employees, to a point, without crossing the line into illegal behavior. However, harassing behavior that is based on something protected is illegal under both Michigan and Federal law. How do you know if something is illegal harassment based on a protected status as opposed to general bullying?
Title VII of the Civil Rights Act prohibits harassment based on race, color, religion, sex, and national origin. Michigan’s Elliott-Larsen Civil Rights Act prohibits the same harassment and also prohibits harassment based on age, height, weight, and marital status. The Americans with Disabilities Act prohibits harassment on the basis of a disability. Under any of these laws, harassment based on a protected trait becomes illegal when the harassment is so severe and pervasive that a reasonable person would find it intolerable. Severe refers to how serious the harassment it and pervasive refers to how frequent it is. Generally, the more severe harassment is the less pervasive it needs to be to be considered illegal, and vice versa, but there is no “bright line” rule and behavior that one judge or jury finds to be illegal may be deemed to be acceptable behavior by a different judge or jury.
The employee making a claim of harassment bears the burden of proof. This means that the employee is the one responsible for setting forth the basic required elements of the claim, including that the harassment is based on one of the specific protected traits. So, while it may be clear that your coworkers are insulting you and demeaning you and making your work environment miserable, to succeed in a harassment claim you would also need to show that this behavior is based on your race, color, religion, sex, national origin, age, height, weight, marital status, or a disability. Merely showing that you are being picked on, due to personality conflicts or favoritism or anything else besides a protected trait, is not enough to prevail in a harassment claim.
So how do you show that harassment is based on something protected? The easiest way is with direct evidence. An example of direct evidence that would show that harassing behavior is based on something protected would be comments about the protected status. For example, if your coworkers make racist comments towards you, it’s clear that the comments are based on race, as opposed to general insults that don’t directly relate to anything protected. Imagery and insinuations that are clearly tied to a protected class, such as nooses or insults that tend to be used on a racial basis, can also be direct evidence that harassment is based on something protected even if race isn’t specifically mentioned.
Without explicit references to a protected status, or the use of implicit references, you may still be able to show that your harassment is based on something protected. For example, if you are the only one of your protected trait in the workplace and are the only one suffering from the harassment, that is often enough. For example, if you have a workplace of 200 people and only one is a minority, and that worker is singled out for the worst tasks and treated the worst by the supervisor, it is likely that a judge or jury would consider that to be racial harassment even if there are no explicit or implicit references about race.
If you believe you have been harassed based on a protected status, contact Gold Star Law for help.
