In Focus: Nonsexual Harassment in the Workplace

By Douglas Lipsky

Harassment in the workplace is typically thought of in the context of unwelcome sexual advances, or similar misconduct, by a supervisor or coworker. However, non-sexual discrimination is another form of unlawful discrimination under applicable employment laws. If you have been the victim of non-sexual harassment, it takes a skilled employment discrimination attorney to enforce your rights.

What is Non-Sexual Harassment?

Non-sexual harassment is any form of physical or verbal conduct based on race, color, religion, national origin, age (40 and over), disability or other legally protected characteristic that is (1) severe or pervasive enough to create a hostile work environment or (2) subjects the victim to an adverse employment action.

A hostile work environment arises when offensive comments or conduct interfere with an employee’s ability to perform their job, or creates an environment that a reasonable person would believe is hostile, intimidating or offensive.

Examples of offensive conduct include:

  • Inappropriate jokes
  • Insults
  • Epithets
  • Ridicule
  • Mockery
  • Intimidation
  • Threats
  • Assaults

In particular, non-sexual harassment may involve (1) the use of gestures or displays that offend a particular protected class, or (2) derogatory  comments about an employee’s skin color, age  religious beliefs, etc. by a supervisor, coworker, contractor or vendor.

Harassment that results in an adverse employment action may involve a supervisor or manager changing any conditions of a worker’s employment — firing, demoting, failing to promote, changing work assignments or employment benefits.

Elements of a Non-sexual Harassment Claim

To have a valid claim, it is necessary to demonstrate that the employee was (1) a member of a legally protected class and (2) subjected to unwelcome comments or conduct due to his or status as a member of a protected class.

It is also necessary to show any of the following:

  • The employee’s condition of employment was adversely affected
  • The comments or conduct interfered with the employee’s performance
  • The comments or conduct created a hostile work environment

That discriminatory animus is motivating the harassment is a key factor. Some employees are unfortunately supervised by a manager who is simply a jerk to everyone. That is not unlawful.

Finally, an employee who complains about nonsexual harassment is protected from retaliation, that is any adverse employment action or subtle form of retaliation (e.g. changing job assignments, demoting, firing).

The showing is less, however, if you live or worked in New York City. The burden is to show only that you were treated less well because of a particular status. For example, a supervisor treated a female less well than a male employee constitutes a hostile work environment under the New York City Human Rights Law.

The Takeaway

If you were the victim of non-sexual harassment, it takes a skilled attorney to explore all of your options for obtaining compensation. The best way to fight back is by filing a lawsuit, often in a collective action. Ultimately, you may be awarded damages for lost wages and benefits, pain and suffering, as well as punitive damages. When you consult Lipsky Lowe, you will have strength in your corner.


About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.