Spot Harassment and Discrimination Handbook

If you’re looking for general information about Spot and how it works, head over to our FAQ.

This handbook does not constitute legal advice. We hope that it acts as useful guidance for understanding the legal concepts of harassment and discrimination.

For now, we only have specific guides for people working in the US and the UK. While much of the information in this handbook applies more generally, please check the situation in your own country or region for more specific guidance.

People working in the US  |  People working in the UK



People working in the US

Getting Started
Definitions, Examples, and the Basics
Anonymity
Legal Responsibility and Lawsuits

Getting Started

I don’t know whether what happened to me was harassment or discrimination. Should I still use Spot?

Yes! Although we provide some guidance below, it’s not your job to decide whether what happened was harassment or discrimination. When employers are told about inappropriate incidents, they are far more likely to act. If what happened made you feel uncomfortable or that you were being unfairly or badly treated, use Spot to report it and leave it to your employer to investigate.

Does it matter in which state I work?

Yes. Each state has its own laws covering workplace discrimination, and they do vary. We have tried to provide some guidance to federal laws, which set the basic framework for state laws.

Definitions, Examples, and the Basics

What is discrimination?

There are two main types of discrimination:

  1. Disparate treatment: Your employer treats you differently than somebody else because you are a member of a protected class (e.g. because of your race, color, religion, sex, national origin, disability or age). Discrimination simply has to be a ‘motivating factor’ in the treatment. Some examples include:
    • Your employer doesn’t give you a promotion because you’re a woman and the manager thinks you’re likely to get pregnant soon.
    • Your manager gives you a lower bonus than your male colleague because you’re a woman and she thinks that you aren’t likely to be the breadwinner.
    • You apply for a job and don’t get it because the hiring manager doesn’t trust Muslims.
    • You’re not invited out for work lunches because you’re gay and your colleague, who organizes the lunches, disapproves of your lifestyle.
  2. Disparate impact: Your employer:
    • Uses a neutral employment policy/practice (one which applies to everyone);
    • this has a disproportionately adverse impact on members of a protected class (e.g. women or black people); and
    • the policy/practice is not job-related and necessary for the operation of the organization.
    • Some examples of disparate impact discrimination might be:
      • Everyone has to be six feet tall.
      • Everyone has to speak English.
      • Everyone has to work on Saturdays.
      • Everybody has to work evenings.

What is harassment?

Harassment occurs when someone at your workplace subjects you to:

The person harassing you can be your supervisor, another supervisor, a colleague, your employer’s agent, or a non-employee (such as a client or customer).

Generally, annoyances and isolated incidents (unless extremely serious) will not amount to unlawful harassment.

Some examples of harassment may include:

What is sexual harassment?

Sexual harassment is similar to non-sexual harassment but the ‘unwelcome conduct’ will be things like unwelcome advances, requests for sexual favors, comments of a sexual nature, or unwelcome sexual touching.

Some examples of sexual harassment may include:

Is my employer responsible if a supervisor harasses me at work?

If a supervisor harasses you and this results in a hostile work environment, your employer will be liable unless it can demonstrate that:

Your employer will always be liable for harassment by a supervisor that results in negative consequences for you, such as being fired, not being promoted, or losing wages.

Is my employer responsible if someone other than a supervisor harasses me at work?

Your employer is only liable when you are harassed by a (non-supervisory) colleague or a non-employee (such as a client, customer, or independent contractor) if they were negligent in failing to prevent the harassment from taking place:

The things that would be taken into account include:

Do I need to make an internal complaint about harassment?

If you’ve been harassed by a manager or supervisor, you may need to make an internal complaint to preserve your claim (if you want to take legal action farther down the line).

The reason for this is that if your supervisor harasses you and creates a ‘hostile work environment,’ your employer may have a defense if it can show that it provided you with a complaints process and you failed to report your harassment to them.

One way you can avoid this is by submitting a Spot report to your employer. You may also wish to use your employer’s internal complaints procedure.

What about bullying that’s unrelated to any protected class?

If you have been or are being treated badly by your colleague or manager, and the behavior is not related to any protected class, this may be considered bullying.

Workplace bullying is not unlawful. However, if you’re being bullied, then we encourage you to use Spot to report it to your employer. Bullying can have a significantly negative effect on you and your workplace, and your employer may want to deal with it.

What if I am treated badly as a result of complaining about discrimination or harassment?

Such treatment would be unlawful and amount to retaliation.

What is retaliation?

Your employer is not allowed to treat you negatively because you engaged in ‘protected activity.’

Engaging in protected activity includes any of the following:

Even if your complaint of discrimination or harassment is not upheld (by your employer or by a court), you can succeed in a claim for retaliation as long as you can show that you reasonably believed that your employer was engaged in wrongful discrimination.

Examples of retaliation include:

Does my employer have to provide ‘reasonable accommodations’ to me?

Disability

If you have a disability, your employer is required to provide reasonable accommodations to you, unless doing so would cause it significant difficulty or expense (‘undue hardship’). If they fail to provide this, they will be in breach of the law.

A ‘reasonable accommodation’ is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.

Examples might include:

‘Undue hardship’ means that the accommodation would be too difficult or expensive in light of your employer’s size, financial resources and organization needs. Your employer cannot refuse to provide accommodations just because it involves ‘some’ costs.

Religion/Belief

Your employer is required to reasonably accommodate your religious beliefs or practices, unless doing so would cause them more than a minimal burden on the operations of their organization.

Examples might include:

Your employer does not have to provide accommodations if doing so would cause them undue hardship. Examples might include the accommodation being costly, compromising workplace safety, or infringing on the rights of others.

What is a ‘protected class’?

These are specific things about you that might distinguish you from other people. The following are regarded as protected classes that you might be a member of:

  1. Age: Federal/EEOC protection only applies to those aged 40+, but some states have laws that will protect you if you’re younger.
  2. Disability: See Disability.
  3. Pregnancy: You must be treated in the same way as any other temporarily disabled employee—e.g. provided with light duties, unpaid leave, or alternative assignments.
  4. Race/Color: This can include personal characteristics associated with race, such as hair texture or facial features. It can also include being connected to or married to someone of a certain race or color.
  5. Religion/Belief: Includes traditional organized religions and other sincerely held religious, ethical, or moral beliefs. It can also include being connected to or married to someone of a certain religion/belief.
  6. Sex: Includes gender identity, transgender status, and sexual orientation (according to the EEOC).
  7. National origin: This includes being from a particular country/part of the world, having a particular accent, or being of a particular ethnicity.

See a list of protected classes in each state..

Do I have to be a member of a protected class to be discriminated against or harassed?

No. Discrimination and harassment is also unlawful when it occurs:

Does my condition count as a disability?

You can have a ‘disability’ in one of three ways:

  1. You have a physical or mental condition that substantially limits a major life activity (such as walking, talking seeing, hearing or learning).
  2. You have a history of disability (e.g. cancer that is in remission).
  3. You’re believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if you don’t have such an impairment).

Is an employer ever allowed to discriminate against me?

Yes, in very limited circumstances.

Is my employer covered by discrimination and harassment law?

The position under federal law is set out below. See a list of covered employees in each state..

If you work for an organization/private organization

If you work for a state or local government agency

If you work for an employment agency (such as a recruitment organization or temp staffing agency)

Am I entitled to protection against harassment and discrimination?

In the employment context, you’re generally entitled to protection against harassment and discrimination if you are:

You’re generally not entitled to protection if you’re an independent contractor.

What if I’m employed by a US organization and work overseas?

If you are a US citizen and are employed by a US organization overseas, you are entitled to the same broad protections as people working in the US.

Anonymity

What are the options for making an anonymous complaint of harassment or discrimination?

There are various levels of anonymity that you might want to use when making a complaint. Spot offers the option to keep a complete record of the incident for yourself but delete identifying details from the report you send to your employer.

  1. Stay completely anonymous and don’t identify the perpetrator (e.g. ‘there is a culture of sexism in team meetings, including harassing comments and women being constantly interrupted, and I’d like it to stop, but I don’t want to name any names.’)
  2. Stay completely anonymous but identify the perpetrator (e.g. ‘John Smith keeps on making racist jokes to me and it’s making me really uncomfortable, but I’m scared of what he’ll do if he finds out I’ve complained.’)
  3. Identify yourself to your employer, but ask them not to disclose your identity to the person against whom you’re making a complaint (e.g. ‘My name is Rebecca Jones. My manager, Frank White, has been slapping my butt and saying that women employees are only useful as ‘eye candy.’ I need to keep getting shifts, so I don’t want to identify myself to him, but this is making every day at the office awful, and I want you to speak to him.’)
  4. Identify yourself but don’t identify the perpetrator (e.g. ‘My name is David Blin. Lots of my colleagues keep making Jewish jokes and I’d like it to stop, but I don’t want to get any of them into trouble.’)
  5. No anonymity—identify yourself and the perpetrator (e.g. ‘My name is John Francis. I have just missed out on a promotion for the second year in a row, and I think that it is because I have dyslexia and my manager, Damian Johnson, doesn’t think I can cope. He has also refused to make reasonable accommodations for my disability, such as giving me extra time to do written tasks or allowing someone else to check over external letters that I send.’)

What are the legal consequences of making an anonymous complaint?

If you make a completely anonymous complaint to your employer (i.e. not giving your name or identifying details), then your employer is unlikely to be able to take disciplinary action against the alleged perpetrator but may be able to conduct a more general investigation to see if there are issues raised by others.

There shouldn’t be any negative consequences for you as a result of making an anonymous complaint, as long as it’s done in good faith. If your employer works out who you are and treats you negatively as a result, this will amount to retaliation and be unlawful.

If you want to file a complaint of discrimination or harassment with the EEOC, you will need to provide your name. However, if you want to remain anonymous, you can get another person or organization to file a charge on your behalf.

Legal Responsibility and Lawsuits

What legal responsibility does my employer have to investigate my report of discrimination or harassment?

If you report that you‘ve been harassed by a supervisor who has created a ‘hostile work environment,’ your employer is required to:

If your employer fails to do so, it is likely to be held responsible for any ongoing harassment.

Some state laws also place obligations on your employer. For example, in California, an employer is required to promptly investigate any claim of discrimination, harassment, or retaliation.

Remember, any action your employer takes that has a negative impact on you (such as moving you to a lesser role or suspending you) will likely amount to retaliation.

What if I want to bring a lawsuit against my employer?

Spot is a recording and reporting tool—we do not provide legal advice or assistance in bringing suit against your employer.

If you decide that you want to bring a lawsuit against your employer, we recommend that you seek legal advice, either from an attorney or a free legal advice agency.

If you’ve been discriminated against or harassed and want to bring a lawsuit, you must first file a charge with the Equal Employment Opportunity Commission (EEOC).

If someone you know has been discriminated against or harassed, you can file a charge on their behalf as a ‘John Doe’ or ‘Jane Doe’ to protect their identity.

The EEOC will then investigate the complaint. If they establish that discrimination has occurred, they will attempt conciliation with your employer to try and achieve a remedy.

If conciliation is unsuccessful, the EEOC may choose whether to bring a suit in federal court.

If the EEOC chooses not to sue on your behalf, you will receive a ‘right to sue’ letter and you can then file your own suit within 90 days.

Some states and cities have bodies similar to the EEOC. These bodies may provide alternative ways to bring a suit.

If you want to bring a suit , there is usually a 180-day time limit from the date of the violation to notify the EEOC (extended to 300 days if there’s a state or local agency enforcing a law prohibiting discrimination or harassment on the same basis). Remember, the time limits and the process may vary in different states.

What about equal pay?

Under the Equal Pay Act, it’s unlawful for your employer to pay different wages to men and women if they perform substantially equal work in the same workplace. It is the duties of your jobs, rather than titles that determine whether the jobs are substantially equal.

All forms of pay are covered by this law—including bonuses, overtime, stocks, holiday pay, and other benefits.

Unlike with other forms of discrimination and harassment, if you think that you aren’t receiving equal pay, you can go directly to court.

Suits for equal pay are often complex; however, you may wish to use Spot to document conversations in which you found out about unequal pay or to anonymously report an issue regarding unequal pay.

Are there any time limits to using Spot in the legal context?

We encourage you to use Spot to record your experience as soon as possible after the event occurs. Your memory will be better, and it will increase the reliability of your evidence.

Important: if you want to bring a lawsuit, you must notify the EEOC within 180 days of the violation (extended to 300 days if there is a state or local agency enforcing a law prohibiting discrimination or harassment on the same basis).

The time limits usually apply to each event. For example, if you weren’t given a bonus and you think that was because of your race, and then a year later you’re fired and you think that was also because of your race, these are two separate events and the deadline applies to each. The exception to this rule is that if you’re suffering from ‘ongoing harassment,’ you only need to file your charge within 180 (or 300) days of the last incident.

However, if something happened a long time ago and continues to affect you, we still encourage you to use Spot. For one thing, your memory of the event is likely to be better now than it will be two years down the line. For another thing, it’s better late than never to inform your employer if you think that there’s something it can do about discrimination or harassment.

People working in the UK

Getting Started
Definitions, Examples, and the Basics
Anonymity
Legal Responsibility and Lawsuits

Getting Started

I don’t know whether what happened to me was harassment or discrimination. Should I still use Spot?

Yes! Although we provide some guidance below, it’s not your job to decide whether what happened was harassment or discrimination. When employers are told about inappropriate incidents, they are far more likely to act. If what happened made you feel uncomfortable or that you were being unfairly or badly treated, use Spot to report it and leave it to your employer to investigate.

Definitions, Examples, and the Basics

What is discrimination?

There are two main types of discrimination:

  1. Direct discrimination: Your employer treats you worse than somebody else (a comparator) because of a specific ‘protected characteristic’ you have (e.g. because of your race, sex, or disability). The comparator can either be real (e.g. John Simms, your male colleague, who is treated better than you) or hypothetical, and the treatment can either be conscious or non-conscious. Some examples are:
    • Your employer doesn’t give you a promotion because you’re a woman and the manager thinks you’re likely to get pregnant soon.
    • Your manager gives you a lower bonus than your male colleague because you’re a woman and she thinks that you aren’t likely to be the breadwinner.
    • You apply for a job and don’t get it because the hiring manager doesn’t trust Muslims.
    • You’re not invited out for work lunches because you’re gay and your colleague, who organises the lunches, disapproves of your lifestyle.
  2. Indirect discrimination: Your employer:
    • applies a ‘provision, criterion or practice’ equally to everyone; and
    • this has the effect of putting you and others who share your protected characteristic at a particular disadvantage; and
    • your employer is unable to show that this is a proportionate means of achieving a legitimate aim.
    • Some examples that might amount to indirect discrimination:
      • Police officers must be six feet tall.
      • All warehouse workers must speak English.
      • All shop assistants must work on Saturdays.
      • All bar staff must have six years’ experience.

What is harassment?

Harassment occurs when someone at your workplace subjects you to:

Some examples of harassment may include:

What is sexual harassment?

Sexual harassment occurs when someone at your workplace subjects you to:

This can include verbal, non-verbal, and physical conduct—including sexual advances, sexual touching, sexual jokes, displaying porn, and sending emails of a sexual nature.

Some examples of sexual harassment may include:

What if I’m treated badly because I rejected the person harassing me?

Another form of harassment occurs when:

If I think I’ve been harassed, whose perspective matters?

In many cases it will be easy to know whether something amounted to harassment, but in others it may be more difficult.

Harassment has a subjective and an objective element:

Because there’s a subjective element, exactly the same conduct can amount to harassment of one person but not another. For example, you and your colleague Adam may both be Jewish, but you find a long-running series of comments about Jewish people having lots of money to be anti-Semitic and feel that it creates an offensive environment for you, whilst Adam laughs it off and says it doesn’t bother him. This likely means that you’ve been harassed, but Adam has not.

Is my employer legally responsible if someone harasses me at work?

In most cases, your employer will be liable for the actions of any employee who harasses you, but will not be responsible if customers or clients harass you.

However, your employer may have a defence if it can show that it took all reasonable steps to prevent the employee from carrying out the act. These are likely to include:

What about bullying that’s unrelated to any protected characteristic?

If you’ve been or are being treated badly by your colleague or manager, and this is not related to any protected characteristic, this treatment may be considered bullying.

Workplace bullying is not unlawful. However, if you’re being bullied, we encourage you to use Spot to report it to your employer. Bullying can have a significantly negative effect on you and your workplace, and your employer may want to deal with it.

What if I’m treated badly as a result of complaining of discrimination or harassment?

This would be unlawful and amount to victimisation.

What is victimisation?

Victimisation is when your employer subjects you to a detriment (treats you negatively) because you did a ‘protected act.’

A protected act includes:

Even if your complaint of discrimination or harassment is not upheld (by your employer or by an Employment Tribunal), you can succeed in a claim for victimisation as long as your protected act was done in good faith.

Examples of victimisation might include:

Am I protected if I witness discrimination or harassment and report it?

Yes. If you see a colleague discriminating against or harassing another colleague and you report this, you’re protected. Any negative treatment of you for reporting it will also amount to victimisation.

Examples might include:

If I have a disability, are there other forms of discrimination?

Yes, there are other specific types of discrimination that apply only to those who have a disability.

Discrimination arising from disability

This occurs when:

Examples include:

Failure to make reasonable adjustments

In certain circumstances, your employer has a duty to make reasonable adjustments to your role.

This applies where your employer applies a ‘provision, criterion or practice’ that causes you a substantial disadvantage in comparison to people who don’t have your disability, or the physical features of the work environment cause you a substantial disadvantage in comparison to people who don’t have your disability. For example:

In these situations, your employer has a duty to make reasonable adjustments to try to avoid or reduce that disadvantage. Common examples include:

What is a ‘protected characteristic’?

These are specific things about you which might distinguish you from other people. The following are regarded as protected characteristics:

  1. Age: Applies to specific age groups, such as over 50s, or ‘young people’
  2. Disability
  3. Gender reassignment: Applies to those proposing to undergo, undergoing, or having undergone a process for reassigning their sex by changing physiological or other attributes
  4. Marriage/Civil Partnership: Applies to those who have a legally recognised relationship
  5. Pregnancy/Maternity: Applies to women from the beginning of pregnancy to the expiry of maternity leave
  6. Race: Applies to any specific race, colour, ethnic origin, nationality, or national origin
  7. Religion/Belief: Applies to any religion with a ‘clear structure and belief system,’ and to some philosophical beliefs
  8. Sex: Applies to men or women
  9. Sexual Orientation: Applies to homosexual, bisexual, and heterosexual people

Do I have to have a protected characteristic to be discriminated against or harassed?

No. Discrimination and harassment is also unlawful where it occurs:

Does my condition count as a disability?

To be regarded as having a ‘disability’ under the law, you must have:

Some examples include:

Is an employer ever allowed to discriminate against me?

Yes, in very limited circumstances. Some of these are:

Am I entitled to protection against harassment and discrimination?

In the employment context, you’re generally entitled to protection against harassment and discrimination if you are:

You’re not legally entitled to protection against harassment or discrimination if you are:

Anonymity

What are the options for making anonymous complaint of harassment or discrimination?

There are various levels of anonymity which you might want to use when making a complaint.

  1. Stay completely anonymous, and don’t identify the perpetrator (e.g. ‘There is a culture of sexism in team meetings, including harassing comments and women being constantly interrupted and I’d like it to stop, but I don’t want to name any names’)
  2. Stay completely anonymous but identify the perpetrator (e.g ‘John Smith keeps on making racist jokes to me and it’s making me really uncomfortable, but I’m scared of what he’ll do if he finds out I’ve complained’)
  3. Identify yourself to your employer but ask them not to disclose your identity to the person against whom you’re making a complaint (e.g. “My name is Rebecca Jones. My manager, Frank White, has been slapping my bum and saying that women employees are only useful as ‘eye candy’. I need to keep getting shifts so don’t want to identify myself to him, but this is making every day at the office awful, and I want you to speak to him.’)
  4. Identify yourself but don’t identify the perpetrator (e.g. ‘My name is David Blin. Lots of my colleagues keep making Jewish jokes and I’d like it to stop, but I don’t want to get any of them into trouble’)
  5. No anonymity—identify yourself and the perpetrator (e.g. ‘My name is John Francis. I have just missed out on a promotion for the second year in a row, and I think that it is because I have a dyslexia and my manager, Damian Johnson, doesn’t think I can cope. He has also refused to make reasonable adjustments for my disability, such as giving me extra time to do written tasks or allowing someone else to check over external letters that I send.’)

What are the legal consequences of making an anonymous complaint?

If you make a completely anonymous complaint to your employer (i.e. not giving your name or identifying details), then your employer is unlikely to be able to take disciplinary action against the alleged perpetrator but may be able to conduct a more general investigation to see if there are issues raised by others.

There shouldn’t be any negative consequences for you as a result of making an anonymous complaint, as long as it’s done in good faith. If your employer works out who you are and treats you negatively as a result, this will amount to victimisation and be unlawful.

Legal Responsibility and Claims

What legal responsibility does my employer have to investigate my report of discrimination or harassment?

Once you make a report to your employer of discrimination or harassment in good faith, your employer is not allowed to treat you unfavourably because of that report. If it does, this will amount to victimisation.

Under the implied terms of your contract, your employer is required to give you a reasonable and prompt opportunity to raise any grievance that you have and to take reasonable steps to deal with any report you make about discrimination or harassment, whether through Spot or any other means.

Furthermore, following your report, any negative comments made or action taken that are linked to or because of your protected characteristic may amount to further harassment or discrimination.

What if I want to bring a legal claim against my employer?

Spot is a recording and reporting tool—we do not provide legal advice or assistance in bringing claims against your employer. Our tool allows you to log a timestamped record when something happens— so that, if necessary, you’ll have the evidence further down the line.

If you decide that you want to bring a claim against your employer, we recommend that you seek legal advice, either from a solicitor/barrister or from a free advice agency such as the Citizens Advice Bureau. Before you bring a claim in the Employment Tribunal in the UK, you need to contact ACAS.

If you want to bring a claim, there’s a three-month time limit from the date of the last discriminatory or harassing act.

What if a customer or client harasses me?

Although you used to be legally protected against harassment from a third party, this was repealed by the UK Government from October 2013.

Now, your employer is likely to be legally responsible only if its response, or its failure to respond, creates an intimidating, hostile, degrading, humiliating, or offensive environment. It may also be responsible for not doing enough to protected you from the effect of the harassment.

Even so we would still recommend that you use Spot to record and report any incidents of harassment from clients or customers—your employer is still under an obligation to investigate and may be able to address the situation.

What about equal pay?

Women and men are entitled to equal pay for:

This includes basic pay, some bonuses, overtime rates, working hours, sick pay etc.

A woman can claim equal pay with a man working:

Claims for equal pay are often complex. However, you may wish to use Spot to document conversations in which you found out about unequal pay or to anonymously report an issue regarding unequal pay.

What about whistleblowing?

Spot is specifically designed to allow you to record and report harassment and discrimination. However, if you want to ‘blow the whistle’ and report some other wrongdoing in your organisation, you can also do this using Spot.

Just record the incidents as usual and then send them to your employer under your own name or anonymously.

Are there any time limits to using Spot in the legal context?

We encourage you to use Spot to record your experience as soon as possible after the event occurs. Your memory will be better, and it will increase the reliability of your evidence.

Important: If you want to bring a legal claim, you must do so within three months of the act of discrimination or harassment. If the discrimination or harassment has been part of a long-running course of conduct of similar acts, you have three months from the date of the last act. If you’re close to the expiry of the three months, we encourage you to seek legal advice as soon as possible.

However, if something happened a long time ago and continues to affect you, we still encourage you to use Spot. For one thing, your memory of the event is likely to be better now than it will be two years down the line. For another thing, it’s better late than never to inform your employer if you think that there’s something it can do about discrimination or harassment.