What are the differences between discrimination, retaliation, hostile work environment and harassment?
Overview:
If you heard of the EEOC, then you also probably heard of the following terms, harassment, hostile work environment, retaliation and discrimination. Oftentimes these words are used interchangeably. But from a legal perspective and within the EEOC, they mean something different. Their differences are nuanced, but it matters. For instance, discrimination and retaliation claims have different rules regarding timely EEO contact than hostile work environment (or harassment). Let us explain:
What is discrimination?
Discrimination refers to when your employer subjects you to unfair treatment based upon your membership in a protected class. The type of unfair treatment determines whether you have a discrimination claim or a hostile work environment claim. Discrimination or discriminatory acts (versus harassing acts) constitute clearly defined personnel actions—we call these “discrete acts” in legal jargon. Generally, these personnel acts are clearly defined, and have a clear effective date. E.g., termination, failure to promote, suspension, demotion. Did you receive a notice of personnel action and an updated SF-50? If so, you probably are dealing with a discriminatory act.
Why does it matter? The biggest implication is that you have 45 days from the effective date of each personnel action to make timely contact with an EEO counselor. This is important so it is worth repeating. Each discriminatory act must be raised to an EEO counselor within 45 days of its effective date.
What is retaliation?
Retaliation occurs when your employer subjects you to unfair treatment because you previously engaged in EEO activity. Retaliation is like discrimination in that both retaliatory acts and discriminatory acts must involve a personnel action. Both also require contact with an EEO counselor within 45 days of the effective date of the personnel action.
A key thing to keep in mind, is that retaliation in the EEOC arena (compared to whistleblowing conduct) must be in relation to EEO activity.
What constitutes “EEO activity” also known as “protected activity”?
Opposition to illegal workplace discrimination. In plain terms, this means that you raised concerns that your employee violated ant-discrimination laws enforced by the EEOC. Because it is unreasonable to expect federal employees to know each anti-discrimination law, “explicitly or implicitly communicating a belief that the practice constitutes unlawful employment discrimination” is deemed sufficient. While the EEOC has found a variety of activities to constitute EEO activity, generally speaking references to “unfairness” or “abusive behavior” without connecting it to a protected class (race, age, gender, etc) does not constitute EEO activity. Most EEOC cases find that EEO activity occurred when employees reference discriminatory behavior and identify the protected class being subjected to it.
By way of illustrating, complaining that your boss is a jerk to HR does not constitute EEO activity, and if your boss targets you for complaining that they are a jerk—it is not illegal before the EEOC. However, if you complain to HR that your boss is a jerk to you because of your age, then you engaged in EEO activity.
What is Harassment/Hostile Work Environment?
The one exception to the interchangeability of the above terms is hostile work environment and harassment, which refer to the same type of illegal conduct. When an employer unlawfully harasses an employee, they create a hostile work environment. Like discrimination and retaliation, the only type of harassment or a hostile work environment that is illegal is when the employer subjects the employee to harassment because they belong to a certain protected class.
In determining whether the harassment creates a hostile work environment, the EEOC considers the frequency of the alleged harassing conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. Generally, a singular harassing event will not create a hostile work environment. Most hostile work environments contain several to many incidents of harassment. Examples of common harassing behaviors include, curt and/or belittling communication, micromanagement, nit picking, rude comments, unwanted sexual advances, aggressive posturing (finger pointing, slamming tables), threatening job security.
To successfully advance a hostile work environment it is important to demonstrate that the harassment impacts the employee’s ability to succeed in their and that leadership was aware of the harassment or should have reasonably known about it.
You can raise a timely EEO complaint about harassment (hostile work environment) so long as you make EEO contact within at least 45 days of at least one incident of the hostile work environment. So say you were subjected to harassment over a period of two years beginning in 2020 and continuing to December 2022. If you made EEO counselor contact in December 2022, then you timely raised a hostile work environment complaint, and all harassing incidents from 2020 to now are included.