A recent study has concluded that more than one in five people in employment has experienced violence and harassment at work. Unfortunately, issues like these continue to affect employees in a place where employers should guarantee respect and security.

Harassment is a violation of rights, so employers are encouraged to understand the problem, deal with cases appropriately and prevent future issues. Similarly, employees should learn about workplace harassment and the measures they need to take.

The information below is a detailed guide to harassment in the workplace, including the various types, dedicated laws, and consequences of failing to report.

What is Harassment in the Workplace?

Workplace harassment is when an employee or group of workers feel threatened or belittled by their colleagues or co-workers. The harasser does so to make their victims feel uncomfortable or unsafe. Workplace harassment is also referred to as workplace bullying, aggression, or mobbing.

Workplace harassment can target anyone, but it often affects women, racial minorities, and people with disabilities, sexual orientation minorities, and immigrants.

By this definition, it is easy to confuse harassment and discrimination. The two have some similarities but retain a key difference.

Discrimination is when a person or group is treated differently because they are part of a protected class, such as race, gender, religion, sex, genetic information, sexual orientation, and disability.

On the other hand, harassment is unwelcome conduct toward a person to the point of unlawfulness and hostility. It can also be based on a protected class.

An example of harassment is when a woman is verbally or physically abused because she is a woman. On the other hand, discrimination is when a woman is denied a well-deserved raise or promotion because she is a woman.

Different Types of Workplace Harassment

1. Sexual Harassment

Sexual harassment is the most common type of harassment in the workplace. It is any unwanted sexual conduct, behaviour, or advances from anyone in the workplace. A study by the EEOC shows that 25% to 85% of women have faced sexual harassment at work, making them the primary victims.

Sexual harassment can be sharing sexual photos, inappropriate touching and gestures, invading someone's personal space sexually, or even sharing sexual comments such as jokes and 'compliments.'

It is also pertinent to note that while sexual harassment is a broad term that covers many types of unwanted sexual attention, it is quite different from sexual assault. This is because the latter is sexual behavior that occurs without the victim’s consent, it is often physical in nature or a failed attempt to be physical. It can include groping, rape, and attempted rape. This resource details out their similarities and differences.

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2. Quid Pro Quo Sexual Harassment

It is an exchange-based sexual agreement where an employer forces the employee to participate in sexual activities in exchange for job benefits or favouritism. A supervisor or top-level management is often the harasser. For example, an accounting manager can ask an employee for a sexual favour to get a salary raise.

3. Physical Harassment

It appears as workplace violence involving physical attacks, assault, and threats. The employee can be abused physically by a co-worker, supervisor, or non-employee. For example, when an employee slaps, kicks, or pushes another employee. Threatening behaviour and destroying property for intimidation are also considered physical harassment.

4. Psychological Harassment

Victims of psychological harassment feel belittled and put down personally and professionally. While it shows no physical scars, psychological harassment has a domino effect, causing mental breakdowns and low self-esteem, which affect work and social life. Eventually, it can affect physical health. An example of psychological harassment is gaslighting.

5. Personal Harassment

Personal harassment is also known as bullying, where it is not based on one of the protected classes. Instead, it targets the victim's personality, looks, and behaviour. While not illegal. It can be severely damaging. Examples include offensive jokes, humiliation, and rude and inappropriate comments.

6. Discriminatory Harassment

Discriminatory harassment is defined by its intentions instead of the way it happens. It is bullying the victims, at least partly, because they are a member of a protected class. The forms of discriminatory harassment include:

● Racial.

It is any harassment based on skin colour, race, or citizenship that manifests as slurs, racial jokes, and intolerance.

● Age-based.

It is being teased or unfairly criticized because of age. For example, making insensitive jokes about a co-worker being too old to use social media.

● Gender.

It is harassment due to the person's gender expression. For example, when a non-binary worker is called 'it.'

● Disability.

It is harassment towards a person with a disability or someone acquainted with someone with a disability. For example, making disability-based jokes or stealing the person's disability tools.

● Religious.

It is harassment based on the person's religious beliefs that can manifest as religious jokes and intolerance toward customs and traditions.

● Sexual orientation.

It is the harassment of sexual orientation minorities. It often affects the LGBTQ community, for example, slurs against gay men.

7. Retaliation Harassment

It is when a person harasses someone to get revenge. It is also performed to ensure the victim does not behave in a certain way again. Retaliation often occurs in response to something the harasser disagrees with. For example, the harasser can sexually, physically, verbally, or mentally harass the victim because they reported them for inaccuracy.

8. Power Harassment

It is when the harasser exercises their power by bullying someone of a lower hierarchy. It can be physical, verbal, sexual, and even psychological—for example, a manager subjecting their subordinate to demeaning demands such as cleaning their shoes.

9. Cyberbullying

Online or digital harassment is also known as cyberbullying. It is when the harasser uses shared apps and platforms to humiliate or harass the victim. The harasser could spread gossip about the victim on social media or send harassing text messages directly to the employee.

Workplace Harassment Laws

According to US law, harassment in the workplace 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).

It is unlawful where:

·       Tolerating the offensive act becomes a continued part of the employment.

·       The inappropriate behaviour is severe enough to create a work environment that a reasonable person would consider hostile, intimidating, or abusive.

The law dictates offensive conduct to be: slurs, name-calling, offensive jokes, intimation, physical threat or assaults, mockery, insults, offensive objects and pictures, mockery, and any interference with work performance.

The employer is automatically liable for harassment by a supervisor that results in termination, wage loss, failure to promote, or adverse negative employment action.

In addition, the employer is liable for harassment by regular employees and non-employees under their control– such as independent contractors and customers– if they knew or should have known about the harassment but did not take corrective action in time.

The Equal Employment Opportunity Commission (EEOC) takes on harassment cases and determines if the harassment is severe or pervasive enough to be illegal.

On the other hand, Kenyan law discusses sexual harassment in the workplace in section 23 of the Sexual Offenses Act, No. 3 of 2006, and in section 6(1) of the Kenyan Employment Act.

The Sexual Offences Act defines sexual harassment as continuous unwelcome sexual advances, lewd verbal or physical gestures, or requests for sexual favours by an authority figure.

The Employment Act describes sexual harassment as any instance where a superior or co-worker requests a sexual favour, such as signing sexual contracts, having intercourse, or engaging in sexual activities in return for favouritism among other employees.

In addition, the act classifies using improper suggestive language– written or verbal– as sexual harassment.

Kenyan law decrees no less than three years imprisonment or a payment of 100,000 shillings or more as a fine for any sexual offender. The act is punishable if the alleged perpetrator is proven guilty.

Consequences of Not Reporting Harassment

No law demands that employees report workplace harassment. While there may be compelling reasons to avoid reporting the incidence, employees risk damaging potential future legal claims against the employer. The employer will escape liability, and the employee will have no chance to pursue a legal remedy.

For these reasons, employees must learn the steps to take in case of harassment in the workplace. Employers should also cultivate safe and intolerant workplaces where offenders are liable for their actions.