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What Is Unlawful Harassment?

THE LAW

  • Title VII of the Civil Rights Acts of 1964 and 1991 prohibits discrimination and harassment based on sex, race, color, religion and national origin.
  • Title VII applies to all employers with 15 or more employees.
  • The ADA prohibits discrimination and harassment based on disability and applies to employers with 15 or more employees.
  • The Age Discrimination in Employment Act (“ADEA”) prohibits discrimination and harassment based upon age and applies to employers with 20 or more employees.
  • USERRA prohibits discrimination and harassment based upon military status and applies to employers with 1 or more employees
  • The Genetic Information Nondiscrimination Act prohibits discrimination and harassment based upon genetic information and applies to employers with 15 or more employees.,
  • Most state fair employment laws prohibit unlawful harassment based on more protected classes than those protected under federal law such as sexual orientation and gender identity.
  • These state laws usually apply to employers with fewer than 15 employees and sometimes to employers with only 3 or 4 employees.
  • What Is Sexual Harassment?

DID YOU KNOW?

  • Unlawful harassment is hostile work environment harassment based upon protected classes other than sex such as age, disability, race, color, religion, national origin, etc.

To show that an employee has been subjected to a hostile work environment you must demonstrate that the harassment unreasonably interferes with an individual's job performance or creates an

  • intimidating, hostile or offensive working environment.
  • Employees who complain about harassment are protected from any retaliation for reporting the harassment.
  • An important element of harassment is that the conduct be “unwelcome”.

WHAT THE LAW REQUIRES

  • Have a well drafted Anti-Harassment Policy which should include a complaint procedure

  • Provide training for your managers and employees
  • Take all complaints seriously
  • Conduct a prompt thorough investigation of any harassment complaints and/or any harassment your managers witness in the workplace
  • Take prompt corrective action to eliminate the harassment

HOW WE CAN HELP

  • We can draft a Anti-Harassment Policy for you that contains a complaint procedure
  • We can provide on-site or on-line Anti-Harassment Training for your managers and employees
  • We can train your managers on how to conduct an effective discrimination and/or harassment investigation
  • We can conduct the discrimination and/or harassment investigation for you
  • We can assist you in determining the prompt corrective action that is required to eliminate the unlawful harassment

INSIGHTS ON WHY ALL MANAGERS SHOULD ATTEND EMPLOYMENT LAW TRAINING

Matt Manager would like to know why he has to attend employment law training. What does employment law have to do with Matt’s job anyway? His job requires him to make sure his employees are being productive and making money. Employment law is HR’s responsibility. Matt has no time or patience for such matters.

Unfortunately, Matt’s conclusion could not be farther from the truth. Now, more than ever Managers need to understand and be familiar with the employment laws because acting within the law, following the company’s policies and avoiding liability are all part and parcel of the manager’s job duties.

Begrudgingly, Matt Manager attends the training class and is pretty shocked by what he learns. The first part of the training deals with hiring and what he can and cannot ask the applicants he interviews. He never knew, for instance, that you could not ask an applicant if they are a US Citizen or ask a female employee if she is married or ask an employee if they are disabled. Who knew?

In fact, in many states the laws prohibit employers from asking questions about citizenship, marital status, disabilities and sexual orientation among other things. More accurately, the laws prohibit an employer from refusing to offer employment to an applicant based on the applicant’s citizenship, marital status, disability, sexual orientation, or any other protected class under federal, state or local law. Once the manager asks questions on these topics, the applicant who is not hired may claim that the real reason he was not hired was a discriminatory motive on the employer’s part as evidenced by their asking such a question and now having such information regarding the applicant.

Moving from hiring issues to the major issues that arise during an employee’s employment, Matt learns that under many state laws, he as a manager can be held personally liable for harassment that he engages in or condones under the state’s aiding and abetting law. What does personal liability mean? It means that he has to pay out of his own pocket damages awarded against him for his harassment in the workplace. In one case a manager was held personally liable for one million dollars! Matt’s ears perk up now. Matt needs to understand how to not engage in harassment himself and how to ensure his employees do not engage in harassment as well.

Matt next learns about the other major problems that arise during an employee’s employment. He learns that he can violate the employment laws by terminating an employee out on protected FMLA leave or by failing to provide a disabled employee with a “reasonable accommodation” under the ADA.

Moreover, Matt thought that if an employee was a poor performer, it would be no problem to get rid of him. Little did he realize that even at the termination stage, the employment laws control every move a manager makes. Although every state other than Montana is an employment-at-will state, he should not just fire an employee for being a poor performer without engaging in progressive discipline. He needs to warn that employee that his behavior is unacceptable and that if he fails to improve he could be subject to further discipline, up to and including, discharge. He also needs to provide the employee with an opportunity to improve before terminating him.

Matt also learns that before he can terminate an employee he better create a paper trail complete with disciplinary warnings as well as the poor performance being reflected in the employee’s performance review. Otherwise, Matt learns when the employee sues for discrimination as he ultimately will, he will be successful because there will be no documentary evidence substantiating Matt’s claims that he fired this employee because he was a horrible employee and not because the employee was too old, Hispanic and gay.

Matt comes running to HR after the employment law training thanking them for providing this valuable and enlightening training. He encourages HR to provide it to all managers at the company so they too can better understand the important role they play in enforcing the company’s employment law policies and protecting the company and themselves from liability.