In sexual harassment investigations, the words "harassment" and "discrimination" are oftentimes used interchangeably by the complainant and witnesses. Even formal complaints drafted by the lawyers allege the same exact incidents to form the basis of the "Sexual Harassment Cause of Action" and the "Sex Discrimination Cause of Action."
We know that sexual harassment is a subset of sex discrimination, but they are not supposed to always be completely identical claims, although they can sometimes be identical. Occasionally, the line between the two is blurry and the workplace investigator (or EEO investigator) needs to determine whether the alleged conduct violates one or both policies of the employer.
In California, only the employer can be held liable for "discrimination", but the employer and any employee can be held liable for "harassment". As a recent blog post by Attorney Jeff Polsky of the law firm Fox Rothschild said:
One rationale for the difference is that discrimination involves official actions of the employer (e.g. hiring, firing, promotion, demotion). Harassment, in contrast, focuses on things an individual can do (or say) to make the work environment hostile.
In the recent California Supreme Court case, Roby v. McKesson Corporation [PDF], the Court examined the legal definitions of each, as follows:
Discrimination: Discrimination refers to bias in the exercise of official actions on behalf of the employer, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.
Harassment: Harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. It focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.
The lower court (in Roby) had ruled that personnel management decisions could not support the harassment claim because they were part of the discrimination claim. However, the Cal. Supreme Court in Roby disagreed with the idea that the same conduct couldn’t be both discrimination and harassment. The Court reasoned that official employment actions (i.e. discrimination) can communicate a hostile message (i.e. can be harassing).
A harassment investigator will need to very carefully evaluate the facts to determine whether "personnel decisions" (such as demotion, failure to promote, firing, transferring, etc.) were carried out in a way that sent a "harassing" message to the complainant, and if so, a managerial employee could potentially violate a "harassment" policy by virtue of a personnel decision.