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:

  • Unwelcome conduct (e.g. offensive jokes, comments, insults, images, threats, physical assaults);
  • that is based on your protected class (e.g. your race, color, religion, sex, national origin, disability, or age); and
  • this conduct either:
    • becomes a condition of continued employment; or
    • is severe or pervasive enough to create a working environment that a reasonable person would consider intimidating, hostile, or abusive; or
    • results in an adverse employment decision (e.g. being fired, demoted, given fewer shifts, or given a smaller bonus).

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:

  • You are a woman and receive a dildo as a ‘secret Santa’ present.
  • You have clinical depression and your manager makes a comment suggesting that depression isn’t a real thing—you’re just being lazy and need to ‘cheer up.’
  • You receive an email chain letter sent around the office which portrays black people as having big penises.
  • Your supervisor tells a homophobic or sexist joke, which offends you.

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:

  • Your manager slaps you on the butt and tries to brush up against you.
  • Your colleague regularly comes on to you, asking you out and refusing to take no for an answer.
  • Your supervisor suggests that you should do Skype meetings while naked from the waist down, so that he can picture what you look like during the meeting.

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:

  • It reasonably and promptly tried to correct the harassing behavior; and
  • you unreasonably failed to take advantage of any preventive or corrective opportunities available.

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:

  • They knew or should have known about the harassment; and
  • they failed to take prompt and appropriate corrective action.

The things that would be taken into account include:

  • The nature and degree of authority welded by the alleged harasser; and
  • any evidence that your employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged any complaints from being filed.

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:

  • Filing a charge of discrimination;
  • resisting sexual advances or intervening to protect others;
  • asking for an accommodation of your disability or religious practices;
  • participating in an investigation into discrimination;
  • opposing discriminatory practices.
  • 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:

    • Firing you because you told your employer that you were being discriminated against because of your disability.
    • Giving you negative performance evaluations because you told your employer that you were being sexually harassed by your manager.
    • Giving you a bad reference because you resigned, claiming that you had been discriminated against because of your race.
    • Threatening to report you to immigration authorities because you supported a colleague’s complaints.

    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:

    • Providing wheelchair access, such as a ramp
    • Avoiding or delaying a dismissal
    • Allowing period of rehabilitation following a substantial absence
    • Altering duties, working hours, place of work, policies, etc.
    • Modifying equipment—e.g. Dragon Naturally Speaking software

    ‘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:

    • Providing flexible shifts to allow Jewish people not to work on Saturdays
    • Ensuring that there are Halal/Kosher meals in the canteen
    • Allowing employees to wear a headscarf or a turban

    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:

    • By association—e.g. racist comments are made to you because your partner is black, or you are not given a promotion because your son is disabled.
    • By wrongful perception—e.g. you are harassed for being homosexual when you are actually heterosexual, or you are discriminated against for being Muslim when you are actually Hindu.

    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.

    • Bona fide occupational requirements (BFOQs): Employers are sometimes allowed to specify that certain applicants for a job or promotion must have a particular protected characteristic. For example:
      • Requesting that an actor in a film version of Othello be black
      • Requesting that a chaplain at a university be Christian
    • Religious organizations: Some religious organizations may be exempted entirely for certain categories—e.g. the church only hiring male clergy members.
    • Military: The US Army is allowed to exclude women from specialities, positions, and units that routinely engage in direct combat.

    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

    • They will generally be covered if they have:
      • 15 or more employees;
      • who have worked for the organization for at least 20 weeks (in this year or last)
    • If your complaint is about discrimination on the basis of national origin or citizenship status, or retaliation, your employer will be covered if it has:
      • between 4-14 employees;
      • who have worked for the organization for at least 20 weeks (in this year or last)
    • If your complaint is about age discrimination, your employer will be covered if it has:
      • 20 or more employees;
      • who have worked for the organization for at least 20 weeks (in this year or last)
    • If your complaint is about equal pay, virtually all employers are covered.

    If you work for a state or local government agency

    • They will generally be covered if they have:
      • 15 or more employees;
      • who have worked for the organization for at least 20 weeks (in this year or last)
    • If your complaint is about age discrimination, your employer will be covered regardless of how many employees they have.

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

    • The agency will be covered if it regularly refers employees to employers
    • The agency is prohibited from:
      • Discriminating against its own employees; and
      • honoring an employer’s discriminatory preferences (e.g. if an employer says ‘only look for men for this role’ or ‘I would prefer none of the referrals have a disability’).

    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:

    • A job applicant
    • An employee
    • An applicant or participant in a training or apprenticeship program
    • A former employee

    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:

    • take reasonable care to promptly correct any harassing behavior; and
    • take prompt and appropriate remedial action.

    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:

    • Unwanted conduct (e.g. offensive jokes, comments, insults, images, threats, physical assaults)
    • that is related to a protected characteristic (it doesn’t have to be yours); and
    • this has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for you.

    Some examples of harassment may include:

    • You’re a woman and receive a dildo as a ‘secret Santa’ present.
    • You have clinical depression and your manager makes a comment suggesting that depression isn’t a real thing—you’re just being lazy and need to cheer up.
    • You receive an email chain letter sent round the office which portrays black people as having big penises.
    • Your supervisor tells a homophobic or sexist joke, which offends you.

    What is sexual harassment?

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

    • Unwanted conduct
    • that is of ‘a sexual nature’ and
    • this has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for you.

    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:

    • Your manager slaps you on the bum and tries to brush up against you.
    • Your colleague regularly comes on to you, asking you out and refusing to take no for an answer.
    • Your supervisor suggests that you should do Skype meetings whilst naked from the waist down, so that he can picture what you look like during the meeting.

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

    Another form of harassment occurs when:

    • someone at your workplace sexually harasses you or harasses you because of gender reassignment or your sex; and
    • that conduct has the the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for you; and
    • because you reject or go along with the harassment, you are treated worse than you would have been if you hadn’t.

    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:

    • Subjective: What effect did the conduct have on you and what was your perception of it?
    • Objective: Whether it was reasonable for the conduct to have that effect.

    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:

    • Implementing an equality policy;
    • ensuring that workers are aware of the policy;
    • providing equal opportunities training;
    • reviewing the policy as appropriate, and
    • dealing effectively with employee complaints.

    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:

    • You raising an allegation of discrimination or harassment with your employer—e.g. by emailing them, raising a grievance, or submitting a Spot report.
    • You bringing a legal claim against your employer for discrimination or harassment (in the UK, this is done by submitting a claim to the Employment Tribunal).

    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:

    • Sacking you because you told your employer that you were being discriminated against because of your disability.
    • Giving you negative performance evaluations because you told your employer that you were being sexually harassed by your manager.
    • Giving you a bad reference because you resigned claiming that you had been discriminated against because of your race.

    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:

    • You witness your colleague Shelley making racist jokes to Brian. You report it to your manager. As a result, your manager decides not to give you a promotion, as she thinks you’re a troublemaker.
    • You’re part of an interview panel in which the boss, John, says that he doesn’t want to hire a woman for the job because the organization can’t afford them going off on maternity leave. You report this to HR and, as a result, they dismiss you.

    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:

    • You’re treated unfavourably;
    • because of something arising in consequence of your disability; and
    • your employer cannot show that this was a proportionate means of achieving a legitimate aim.

    Examples include:

    • You’re dismissed because you’ve been off work with depression for three months, and your employer hasn’t tried to find out how long your absence is likely to last.
    • You aren’t given a promotion because you have Tourettes and your employer says they cannot trust you in a client-facing role, when in fact they haven’t sought medical evidence about the impact of your condition.

    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:

    • Having stairs to access the staff canteen
    • Having a policy whereby staff who are absent for six months with ill health are dismissed
    • Requiring employees to go straight back to their role after they’ve been absent and to make up any work they’ve missed
    • Requiring all staff to work without breaks and to work night shifts
    • Requiring all administrative staff to type at an average of 70 words per minute

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

    • Providing wheelchair access, such as a ramp
    • Avoiding or delaying a dismissal
    • Allowing period of rehabilitation following a substantial absence
    • Altering duties, working hours, place of work, policies, etc.
    • Modifying equipment—e.g. Dragon Naturally Speaking software

    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
  • Marriage/Civil Partnership: Applies to those who have a legally recognised relationship
  • Pregnancy/Maternity: Applies to women from the beginning of pregnancy to the expiry of maternity leave
  • Race: Applies to any specific race, colour, ethnic origin, nationality, or national origin
  • Religion/Belief: Applies to any religion with a ‘clear structure and belief system,’ and to some philosophical beliefs
  • Sex: Applies to men or women
  • 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:

    • By wrongful perception—e.g. you’re harassed for being homosexual when you’re actually heterosexual, or you’re discriminated against for being Muslim when you’re actually Hindu.
    • By association—e.g. racist comments are made to you because your partner is black, or you’re not given a promotion because your son is disabled.

    Does my condition count as a disability?

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

    • A physical or mental impairment, which has a substantial and long-term adverse effect on your day-to-day activities—this means that it is ‘more than trivial’ and has lasted or is likely to last for at least 12 months.
    • If you’re being treated for a condition, the effect of your condition is judged on the basis of what the effect would be if you weren’t having that treatment (e.g. if you have diabetes, the assessment is of the effect this would have on you if you did not take insulin regularly).
    • If you have a fluctuating or recurring condition, it’s treated as continuing even if the effects stop for a period of time.

    Some examples include:

    • Clinical depression, which recurs every couple of years and is treated with antidepressants
    • An arm injury which stops you from lifting basic things like a backpack or a shopping bag
    • A speech impediment such as a stammer, which makes speaking on the telephone difficult
    • OCD, which means that you have to constantly check and recheck that, for example, doors are locked and electrical appliances are switched off
    • Some conditions (such as cancer, HIV infection, and multiple sclerosis) are always considered a disability, from the time of diagnosis

    Is an employer ever allowed to discriminate against me?

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

    • Occupational requirements: Employers are sometimes allowed to specify that certain applicants for a job or promotion must have a particular protected characteristic. For example:
      • Requesting that an actor in a film version of Othello be black
      • Requesting that a chaplain at a university be Christian

      However, to rely on this, the organisation must be able to show that the requirement:

      • Is crucial to the post; and
      • relates to the nature of the job; and
      • is a proportionate means of achieving a legitimate aim.
    • Age discrimination: In certain circumstances, an employer can justify treating you less favourably because of your age, as long as it can show that it was a proportionate means of achieving a legitimate aim. For example:
      • Having a rule that all employees must retire at 70 unless there are exceptional circumstances
    • Positive discrimination: There are some specific circumstances in which your employer is allowed to ‘positively discriminate’ by treating someone more favourably. For example:
      • Employees who are on maternity leave at the time of a redundancy are entitled to be offered any suitable available vacancies, even if somebody else is better qualified for the role.

    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:

    • A job applicant
    • An employee
    • An apprentice
    • A former employee
    • A contract worker who has agreed personally to perform services and act on the employer’s instructions
    • Some other specific categories (e.g. a police constable, a pupil barrister or a public office holder)

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

    • Genuinely self-employed and doing work for a client/customer on your own account where you haven’t contracted personally to do the work and/or are not subordinate to an employer
    • A volunteer

    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:

    • Equal work; and/or
    • work of equal value.

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

    A woman can claim equal pay with a man working:

    • for the same employer at the same workplace;
    • for the same employer but at a different workplace where common terms and conditions apply (e.g. at another branch of a store); and
    • for an associated employer (e.g. at your employer's parent organisation).

    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.