How-to guide: Overview of workplace harassment (USA)

Introduction

This guide will help in-house counsel, private practice lawyers and human resource departments to reduce the risk of harassment occurring within their workplace. It will also assist with formulating a response to any harassment complaints that are received.

This guide covers the following:

1. Overview of the legal framework relating to harassment
2. Administrative measures and responding to complaints
3. An employer’s liability for hostile environment harassment

For further information on this topic, see How-to guide: Overview of US employment law and How to investigate workplace harassment complaints and Checklist: Developing an Equal Employment Opportunity Commission (EEOC) compliant policy.

Section 1 – Overview of the legal framework relating to hostile environment harassment

1.1 Federal law

Harassment is a type of employment discrimination. It is described by the Equal Employment Opportunity Commission (EEOC) as unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history) (see EEOC webpage: Harassment) .

The EEOC states that harassment becomes unlawful when:

• enduring the offensive conduct becomes a condition of continued employment (quid pro quo harassment); or
• the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive (hostile environment harassment).

Because harassment is a form of employment discrimination, it violates federal laws, including:

• 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).

1.1.1 Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 (Title VII) is the main federal law that prohibits employment discrimination based on:

• race;
• religion;
• national origin;
• color; and
• sex, including gender, gender identity, pregnancy, and sexual orientation.

Title VII protects an employee from an employer taking an ‘adverse employment action’ against an employee or potential employee based on any of the protected characteristics listed above. Courts have defined an ‘adverse employment action’ as a materially adverse change in the terms and conditions of employment that is more disruptive than a mere inconvenience or an alteration of job responsibilities. Allowing or engaging in workplace harassment is regarded as an adverse employment action (see Patterson v Mclean Credit Union 491 U.S. 164 (1989) (superseded on other grounds by the Civil Rights Act of 1991, Pub.L. No. 102-166).

1.1.2 The Age Discrimination in Employment Act of 1967

Protection from hostile environment harassment is also provided by the Age Discrimination in Employment Act of 1967 (ADEA) which makes it unlawful to harass a person because of age (for those age 40 or older). The ADEA applies to employers with 20 or more employees. Guidance related to age discrimination is provided by the EEOC.

1.1.3 The Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (ADA) is a comprehensive federal law that protects qualified disabled employees from discrimination and harassment in the workplace. It applies to employers with 15 or more employees.

1.1.4 EEOC Policy Statement

In conjunction with the specific laws mentioned above, the Equal Employment Opportunity Commission (EEOC) defines ‘harassing conduct’ as ‘unwelcome conduct that is based on race, color, religion, sex (including sexual orientation, transgender status, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history)'. The EEOC states that harassment becomes unlawful when ‘1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive'. Offensive conduct may include, but is not limited to, jokes, slurs, epithets or name calling, physical assaults or threats of assaults, intimidation, ridicule or mockery, insults or put-downs, display of offensive objects or pictures, or interference with work performance.

The laws also prohibit harassment in retaliation for filing a discrimination charge, or for testifying, or ‘participating in any way’ in an investigation, proceeding, or lawsuit regarding harassment, or opposing employment practices that they reasonably believe discriminate unlawfully against individuals.

Petty slights, annoyances, and minor isolated incidents will not be illegal harassment.

Prohibited workplace harassment may take either of the two forms listed below.

1. Quid pro quo harassment – occurs in situations where employment decisions or treatment of employees is based on submitting to or rejecting unwelcome conduct, which is typically conduct of a sexual nature.
2. Hostile environment harassment – offensive conduct towards one or more protected groups. In this type of harassment, the conduct must be so severe or pervasive that it creates a hostile or offensive work environment, or it results in an adverse employment decision (such as being fired or demoted). The DOL has provided the following examples of behaviors that may contribute to an unlawful hostile work environment (see DOL guidance: What Do I Need to Know About Workplace Harassment):
   • the use of microaggressions, or verbal and nonverbal insults, comments, or other unwelcome behavior, that may be intentionally or unintentionally offensive, demanding or degrading;
   • using the term ‘tranny’ to refer to transgender persons, or asking personal and private questions about a perceived or known transgender person’s genitalia;
   • telling racist, sexist, homophobic, transphobic, or xenophobic jokes or stories;
   • teasing, name calling, ridiculing, insulting, mocking, mimicking or repeatedly commenting on or making gestures about an individual’s disability, accent, hair, or other protected characteristic;
   • using ‘pet’ names or sex-based nicknames or other forms of stereotypes;
   • making demeaning, obscene, or lewd comments, slurs, epithets, or suggestions;
   • displaying or discussing inappropriate or sexually suggestive or insensitive objects, pictures, images, or cartoons;
   • exhibiting bullying, intimidating, or threatening behavior;
   • continuing unwelcome behavior after an individual has objected;
   • displaying belittling caricatures or objects depicting persons of a particular race, national origin, religion, or other protected basis, or other objects with a sordid history based in racism or discrimination, such as the display of swastikas, nooses, or the Confederate flag;
   • leering at or ogling another person;
   • stalking or following a colleague, including through the use of social media or off-site;
   • improperly disclosing confidential information about another person related to their actual or perceived status in a protected class;
   • unwelcome sexual advances or requests for sexual favors; and
   • unwelcome touching.

1.2 State and local law

Some states and municipalities have their own laws that prohibit hostile environment harassment. They may mirror the federal provisions, or be stricter or more lenient. Laws that are more lenient may apply only to smaller employers not covered by federal laws, ie. the federal laws cannot be undermined by state legislation. Employers should be aware of the differences that exist between the state and local laws in which they conduct business and the federal provisions.

For example, some state laws may apply to employers with fewer employees than required by the ADA (at least 15 employees) or the ADEA (at least 20 employees). California, for example, defines ‘employer’ as any person regularly employing one or more persons for the purposes of its Employer Discrimination and Harassment statute.

Some local jurisdictions may also have anti-discrimination agencies and laws that mirror or are different from federal. Atlanta, for example, has a separate agency (Human Relations Commission) that investigates and hears complaints regarding discrimination, makes recommendations on how to resolve such complaints. The City of Atlanta has also enacted ordinances that prohibit discrimination based on prior criminal history.

Section 2 –Administrative measures and responding to complaints

Employers can take steps to prevent harassment occurring through various administrative measures, and can seek to avoid reoccurrence through dealing promptly and effectively with complaints.

2.1 Administrative measures

The DOL, in guidance on its website, believes that ‘the most effective way to limit harassing conduct is to treat it as misconduct, even if it does not rise to the level of harassment actionable under the law. The goal of the [DOL] Policy is to eliminate harassment before it becomes severe and pervasive enough to violate the law’ (see DOL guidance: workplace harassment).

While the DOL guidance applies only to the DOL and its employees, the guidance does set out useful steps for all employers to take. The optimal way to deal with and eliminate workplace harassment is through preventative measures.

Employers should be sure to take appropriate steps to prevent and correct unlawful harassment, including those set out below.

2.1.1 Written policies and guidelines

Employers should unequivocally let employees know that unwelcome harassing conduct in the workplace will not be tolerated. Employers should have in place an anti-harassment section within a wider anti-discrimination policy, that clearly describes the type of behavior that is unacceptable, as well as setting out the federal and state laws that may be violated by harassing behavior.

In April 2024, the EEOC published the Enforcement Guidance on Harassment in the Workplace (‘Enforcement Guidance); a document that provides insights on what is considered harassment and how to avoid it in the workplace. While not law, employers should take advantage of the Enforcement Guidance in the construction and use of their own harassment policies. However, note that on May 15, 2025, a federal court declared unlawful and vacated portions of Enforcement Guidance as contrary to law (see Texas, et al. v. EEOC, 2:24-CV-173 (N.D. Tex. May 15, 2025) (Kacsmaryk, J)). In that case, the court concluded that that the Enforcement Guidance contravened the ‘plain text’ of Title VII of the Civil Rights Act ‘by expanding the scope of ‘sex’ beyond the biological binary.’ The court further determined that the Enforcement Guidance ‘contravene[d] Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.’ The court’s vacatur of those portions of the Enforcement Guidance applies nationwide, not just to the parties in the case. The EEOC ‘continues to review to ensure full compliance with the court order.’

The policy should clearly indicate that any supervisors or managers who personally witness harassment, or who are informed of allegations of harassing conduct, must act swiftly to address and mitigate the harassing behavior.

Employees should be encouraged via the policy to inform the alleged harasser directly that the conduct is unwelcome and must stop, if they feel safe and comfortable to do so, but should also be encouraged to report harassment to management at an early stage to prevent its escalation.

For guidance in preparing an anti-harassment policy, see Checklist: Developing an Equal Employment Opportunity Commission (EEOC) compliant policy.

2.1.2 Procedure

The anti-discrimination policy should clearly inform all employees:

• how to file a complaint of harassment;
• the process that will be followed by the employer when an employee files a complaint of harassment, including details of who will handle the complaint, the actions that will be taken, how the investigation may proceed, and any potential follow-up activity;
• whether mediation or other dispute resolution will be available;
• that the employer prohibits retaliation against any employee who reports harassment or participates in an investigation; and
• of the organization’s commitment to maintaining confidentiality throughout the investigation process to the extent possible, consistent with a thorough investigation.

The policy should encourage complaints from those who believe that they have witnessed harassing conduct as well as those that have been subjected to the conduct.

Employers should take corrective action in the event supervisory or management personnel fail to report potential instances of harassment. Employers should also be prepared to take disciplinary measures against individuals who harass employees. Disciplinary measures must be commensurate with the acts of harassment and may consist of additional compulsory training or counselling, or, for particularly serious conduct, suspension or dismissal.

2.1.3 Meetings

Employers should hold regular meetings with employees in order to distribute copies of the anti-harassment policy and any other relevant procedure materials and to take questions regarding the policy. The nature and timing of the meetings depends on the employer. Some employers may find that it works best to have the policy presented to all employees at the same time. Others may find it more efficient to let supervisory personnel decide when to distribute copies, with the understanding that each employee must receive a copy of the policy by a certain deadline. The goal of the meetings should be to communicate the seriousness of harassing conduct and to make clear the commitment of the employer to ensure a workplace culture free from unlawful behavior. The employer should strive to have an open and honest dialogue about harassment and to answer any questions employees may have relating to legal obligations and the employer’s policies, guidelines, and procedures.

2.1.4 Training

Employers should conduct anti-harassment training for all employees as part of the onboarding process, and then regularly thereafter. Training should include participation from human resources staff as well as from employment attorneys and reference should be made to the EEOC’s guidance regarding training protocols. Training sessions should include distribution of the employer’s anti-harassment policy and guidelines.

Federal and state laws that may be violated by harassing behavior should be emphasized in the training and employees should be informed of the potential consequences to the employer and to the individual that engages in any unlawful harassing conduct. Consequences might include disciplinary action and, in particularly egregious or repeat cases, suspension or termination.

2.2 Responding to internal complaints

Upon receiving a complaint of harassment employers should take the following steps:

• identify the individual who have potentially violated federal or state hostile environment harassment laws;
• confidentially address the complaint with the complainant and then, separately, the employee who allegedly engaged in the conduct;
• discuss the incident with any identified witnesses; and
• if the complaint is meritorious, stress to the employee the importance of them ceasing the conduct or otherwise risk consequences, up to and including termination.

For additional information, see How-to guide: How to investigate workplace harassment complaints.

When the harassing conduct is especially serious, such as when it involves unwanted touching, the employer should assess the possible need for immediate termination. The organization must document all communications and meetings with the complainant, witnesses, and the violating employee in advance of potential litigation.

Section 3 – An employer’s liability for hostile environment harassment

Complaints of harassment under the federal laws listed at 1.1 above are subject to the enforcement of the EEOC. When the EEOC investigates allegations of harassment, it looks at the totality of the circumstances, including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis. For further information, see Checklist: Responding to an Equal Employment Opportunity Commission (EEOC) charge.

An employer’s liability for harassment will differ depending on the identity (eg, supervisory or non-supervisory employee) of the individual harasser.

3.1 Harassment by supervisors and managers

An employer is automatically liable for harassment of an employee by a supervisor or manager. When the harassing conduct of the supervisor or manager results in a hostile work environment, the employer can avoid liability only if it can prove that:

• it reasonably tried to prevent and promptly correct the harassing behavior, by having an anti-harassment policy in place and making sure employees are aware of it, and taking corrective action if harassment is reported; and
• the employee making the complaint unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

3.2 Harassment by non-supervisory employees

Employers are strictly liable for harassment perpetrated by supervisors, and liable for harassment by non-supervisory employees or non-employees (such as independent contractors or customers). This is based on a standard of negligence. An employer will be held liable if it is established that the employer knew, or should have known, about the harassment—whether through formal complaint or the pervasive nature of the conduct—and failed to take ‘prompt and appropriate corrective action.’ This corrective action must be designed to stop the harassment and to prevent further harassment, whether by the same harasser or by others. This will include conducting an investigation proportionate to the acts of harassment, taking disciplinary action against the harasser, and protecting the victim from further misconduct. Corrective action will highlight the organization's affirmative duty to maintain a safe working environment once aware of the issue.

Additional resources

Related Lexology PRO content

How-to guides

Overview of US employment law
How to draft the key provisions of an employee handbook
How to investigate workplace harassment complaints
How to make reasonable accommodations for employees with disabilities
How to make accommodations for religious belief or practice
How to comply with legal developments relating to Diversity, Equity and Inclusion
How to deliver workplace diversity training

Checklists

Developing an Equal Employment Opportunity Commission (EEOC) compliant policy
Responding to an Equal Employment Opportunity Commission (EEOC) charge

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