To prove unlawful harassment claims, an employee must satisfy five criteria: (1) the employee is a member of a protected class; (2) the harassment was unwelcome; (3) the harassment was based on a protected characteristic; (4) the harassment was sufficiently severe or pervasive to create a hostile or abusive working environment; and (5) A basis for employer liability exists. If an employee cannot prove any one of these elements, the employee cannot prove harassment that is against the law.
When an employee can prove each element of a harassment claim, the employer faces serious and substantial liability. When the harassment takes the form of a tangible employment action, the employer has few defenses available. Tangible employment actions are significant changes in employment status. Examples include a discharge or demotion or a significant change in compensation or benefits. If the harassment is the result of conduct that was not a tangible employment action, an employer is still likely to be found responsible unless: (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
This law is the reason why creating and implementing anti-harassment policies is so important for employers and why promptly reporting harassment to employers with such policies is so important to employees.