Employer Liability Update: Harassment & Discrimination

Harassment becomes unlawful when an employer, supervisor or co-worker harasses a person because of their race, color, creed, ancestry, national origin, age (40 and up), disability, sex, arrest or conviction record, family status, sexual orientation or membership in the military reserve.

It involves a pattern of abusive and degrading conduct directed against a protected class member that is sufficient to interfere with their work or create an offensive and hostile work environment.

What is the purpose of the Fair Employment Law?

The purpose of the law is to protect the rights of people to employment free of unlawful discrimination. A person, who believes he or she is a victim of unlawful employment discrimination, may file a complaint.  It is unlawful, for public and private employers, employment agencies, licensing agencies and unions, to refuse to hire, to discharge, or otherwise discriminate in any term or condition of work, because of a person’s protected class, unless that characteristic is defensible as a Bona Fide Occupational Qualification (BFOQ).

There are two types of harassment:

1. Quid Pro Quo (This for That) aka Economic:  It is a trade.  When the trade is on the basis of race, sex, color, national origin, religion, creed, age, or handicapping condition, it is illegal.   

2. Hostile/Uncomfortable Work Environment aka Environmental: Hostile environment harassment does not need to include a demand for an exchange of favors for a job benefit.  It is the creation of an offensive or intimidating work environment.  For example: “If one employee kept telling another employee racist jokes that the second employee found offensive, it would be harassment.  Or, if another employee overheard the two employees exchanging racist jokes, this could also be harassment.” 
Note: Jokes, pictures, touching, leering, unwanted solicitations for a date, derogatory epithets, etc. have all been found by courts to be harassing.

Employer Liability:

The employer is liable for supervisor harassment because supervisors are aided in their misconduct by the authority that the employers have delegated to them, such as the authority to undertake or recommend tangible employment decisions, or to direct the employee’s daily work activities.  

Some statistics:

In Fiscal Year 2004, the EEOC received 13,136 charges alleging sexual harassment. 15.1% of these charges were filed by males.

48.7% of all sexual harassment charges filed with the EEOC result in a finding of "no reasonable cause." Only 7.5% result in a "reasonable cause" finding

68% of employers have written policies addressing workplace violence, up from 59% in 1996.

    http://vantage-solutions.com/statistics.html
    http://www.eeoc.gov/stats/harass.html

HRS offers supervisor training to avoid unlawful harassment complaints.