What's the Difference Between Discrimination and Harassment at Work? A Guide for Employers

In short, discrimination typically refers to unfair treatment through adverse employment actions (like firing or refusing to hire), while harassment refers to unwelcome conduct that creates a hostile work environment. Understanding this difference is crucial for creating effective policies and responding correctly to employee complaints.

These issues can be incredibly complex and result in fines and civil lawsuits. If you have serious concerns or questions, it’s a good idea to talk to a local employment law attorney for legal advice.

Discrimination vs. Harassment at a Glance

While often used interchangeably, discrimination and harassment aren’t the same things. Some of the primary differences include:

What Is Employment Discrimination?

Employment discrimination occurs when an employer makes a decision about an employee’s job based on their membership in a protected class, rather than on their individual qualifications. These decisions can relate to hiring, firing, demotions, pay, job assignments, promotions, or benefits.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on:

• Race
• Color
• Religion
• Sex
• National origin

Other federal laws expand these protections, including the Age Discrimination in Employment Act (ADEA) for workers 40 and over, the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).

Many state and local discrimination laws offer broader protections. For example, California and Minnesota’s civil rights laws prohibit discrimination based on sexual orientation and gender identity.

What Is Workplace Harassment?

The U.S. Equal Employment Opportunity Commission (EEOC) defines harassment as unwelcome conduct that is based on a protected characteristic. To be unlawful, the conduct must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. While a pattern of ongoing behavior is common, a single, extremely severe incident (like a physical assault or an extreme racial slur) can be enough to constitute illegal harassment.

Sexual harassment is one of the most common forms of workplace harassment and illustrates its two main types:

• Quid Pro Quo (“This for that”): This occurs when an employment decision is conditioned on an employee’s submission to or rejection of unwelcome sexual advances and conduct. For example, a manager offering a promotion in exchange for sexual favors is engaging in workplace harassment.
• Hostile Work Environment: This occurs when unwelcome conduct is so severe or pervasive it interferes with an employee’s job duties. This can apply to harassment based on any protected status, not just sex.

Harassment can be perpetrated by anyone in the workplace, including a supervisor, a co-worker, or even a non-employee like a client or vendor. The victim does not have to be the person directly targeted.

An Employer’s Duty to Prevent and Respond

Employers have a legal duty to prevent and stop discrimination and harassment in their workplace. This involves two key responsibilities. Let’s examine each one.

Preventing Harassment and Discrimination

Employers must provide a safe work environment free from harassment or discrimination. Some of the steps involved include:

• Create a clear policy: Develop and distribute a comprehensive anti-discrimination and anti-harassment policy that defines prohibited conduct and outlines a clear reporting procedure
• Train employees: Conduct regular training for all employees and managers so they understand the policy, know their rights and responsibilities, and can recognize unacceptable behavior
• Foster a professional culture: Lead by example to create a workplace culture where respect is the standard and inappropriate conduct is not tolerated

Clearly defining what’s permissible and what isn’t can prevent incidents and help protect your company if they do occur.

Responding to Harassment and Discrimination

Even well-defined policies are sometimes not enough to prevent an employee from misbehaving and acting inappropriately. If one of your workers makes a discrimination or harassment claim, you should have a system in place for handling it. This should include:

• Take all complaints seriously: When you receive a complaint, you must act
• Investigate immediately: Conduct a prompt, thorough, and impartial investigation into the allegations
• Take appropriate action: If the investigation confirms misconduct, take corrective action that is designed to stop the behavior and prevent it from recurring
• Prevent retaliation: Ensure that no employee is punished or ostracized for making a good-faith complaint or participating in an investigation

Making sure your policies and procedures are clear to all employees before an issue arises is the best way to protect your business and your team. Ignoring the problem and hoping it’ll go away is not advisable.

Get a Lawyer’s Help

If you need help developing policies or are facing a complaint, a local lawyer can provide the legal guidance you need. FindLaw’s directory of employment lawyers can help you find an advocate familiar with your state laws.