The federal government has laws in place that cover employment discrimination, as do most states. South Carolina has its own laws regarding hostile work environments, many of which mirror the federal laws and other states' laws. Businesses that fail to comply with these employment laws may find themselves in litigation and suffer serious penalties.
Definition of a Hostile Work Environment
When a person is subject to workplace harassment against a protected class of people, they can be in a hostile work environment. This harassment can cause a victim's work to suffer, intimidate them or create an otherwise oppressive atmosphere in the workplace. The person driving the harassment must target a protected class characteristic of the victim for federal and state laws to recognize the acts as creating a hostile work environment.
For example, if an employer yells at an employee because they're angry with their work performance, that is not discriminatory. However, if they target a protected characteristic of that person, such as gender or race, and the harassment is "severe or pervasive," it can lead to a hostile work environment claim.
The U. S. Equal Employment Opportunity Commission (EEOC) and South Carolina consider unwelcome conduct based on color, race, religion, sex, national origin, age (beginning at age 40), disability or genetic information as discrimination and harassment. The laws also prohibit harassment against people in retaliation for filing a charge of discrimination, testifying, participating in an investigation or lawsuit, or opposing discriminatory practices. The behavior becomes illegal when the victim tolerates the offensive conduct as a condition of their employment, or the harasser's behavior creates an environment that anyone would consider hostile, abusive or intimidating and that causes emotional distress.
Types of Workplace Harassment
There are three types of workplace harassment: verbal or written, physical and visual. The harassment does not have to target a specific person. For example, if a person makes an inappropriate hand gesture and a co-worker accidentally sees it and feels uncomfortable, this can constitute harassment.
Verbal or written offenses are the most common; they include name calling, slurs, offensive jokes, sending emails with offensive images or text about the protected classes, sexually harassing someone by repeatedly requesting dates or sexual favors, making derogatory comments about the protected classes, or even asking about them. Physical harassment can be subtle and, therefore, hard to recognize. It includes:
- Lewd gestures used to convey inappropriate language or cursing.
- Unwanted touching of someone else, including their clothing.
- Deliberately following or standing too close to someone.
- Facial expressions that are sexually suggestive.
- Playing music with degrading or offensive language.
Visual harassment may be the hardest to recognize, as it is subjective. For example, a person may have a picture on their desk that they find funny, but that someone else believes is offensive. Some additional examples of visual harassment include:
- Clothing with an offensive image or language.
- Display of sexually suggestive images.
- Sexually suggestive text messages or emails shared with other workers.
- Viewing pornographic or violent videos at work.
- Violent or sexually suggestive images drawings.
Employer Liability for Harassment
In South Carolina, a business can be liable for a supervisor's harassment if it negatively affects an employee. This can be by termination, the failure to get hired or promoted, and lost wages. However, the business may avoid liability for that supervisor's actions if it can prove that it tried, within reason, to prevent and immediately correct the harassment, and the perpetrator did not take advantage of preventive or corrective opportunities regarding their behavior as provided by the employer.
An employer can also face liability for harassment by employees who aren't supervisors or by other people over whom it has some control. This includes independent contractors, vendors or customers who happen to be on the premises. A company can be found liable if it knew about the harassment, but failed to take immediate corrective action.
Documenting the Offensive Behavior
An employee who is a victim of a hostile workplace should consult the employer's policies regarding these behaviors. These are often contained in the employee handbook or posted at the workplace. Those with concerns should submit them in writing and keep a copy for themselves.
When documenting the complaint, the person filing it should be specific as to the facts of harassment and show the who, what, when and where of the incident. If someone else witnessed the incident, they should document what they know or saw to support the victim's story. When telling the story, their tone should be respectful and professional; it does not have to be in legal jargon or threatening, as these things can reduce credibility.
Filing a Complaint in South Carolina
Those who wish to file a complaint against an employer for a hostile work environment can contact the South Carolina Human Affairs Commission, which looks at employment discrimination cases. Claimants have up to 180 days from the date of the incident to file. They can still file a complaint after that time, but the state would transfer their complaint to the EEOC.
Those who have missed the 180-day mark must nevertheless file within 300 days of the incident by filling out the Employment Initial Intake Questionnaire or a PDF and mail, fax or bring it to 1026 Sumter Street, Suite 101, Columbia, South Carolina 29201. The agency will review the complaint to determine discrimination. If they find it, they will prepare a formal Charge of Discrimination for the employee to sign and return. Depending on the case's complexity, the agency's caseload, and the extent of cooperation by the business and the person filing, it usually takes about 180 days to process the complaint, but can take even longer.
Consequences for the Employer and Employee
According to Greenville News, if the investigation shows that workplace discrimination was indeed present, the victim can still return to their job or a similar position in the company and receive lost back pay and benefits. They may be reimbursed for their attorney's fees and court costs. The victim can also sue the business for up to $300,000 in damages.
A company cannot fire an employee in retaliation for making a complaint of harassment or helping someone else to file a complaint; this wrongful termination is illegal. If the business does retaliate, the victim or the employee who helps them can file a separate claim against the company.
- Equal Employment Opportunity Commission: Harassment
- South Carolina Human Affairs Commission: How to File Employment Complaints
- South Carolina Human Affairs Commission: Employment Discrimination
- EverFi: 3 Types of Workplace Harassment to Watch Out For
- South Carolina Human Affairs Commission: Employment
- South Carolina Human Affairs Commission: Employment Initial Inquiry Questionnaire
- GreenvilleOnline: Know Your Rights: How Workplace Discrimination Is Handled in SC
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.