👔Employment Law Unit 3 – Harassment and Hostile Work Environments

Key Definitions and Concepts

• Harassment involves unwelcome conduct based on protected characteristics (race, color, religion, sex, national origin, age, disability, genetic information) that creates an intimidating, hostile, or offensive work environment
• Quid pro quo harassment occurs when submission to or rejection of unwelcome sexual conduct is used as the basis for employment decisions affecting an individual
• Hostile work environment harassment exists when unwelcome conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive
• Protected characteristics include race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age (40 or older), disability, and genetic information
• Unwelcome conduct can be verbal, physical, or visual and includes offensive jokes, slurs, epithets, name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance
• Severity and pervasiveness are evaluated based on the frequency and severity of the conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance
• Retaliation against an individual for reporting harassment or participating in an investigation is prohibited by law

Types of Workplace Harassment

• Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature
  • Includes offensive remarks about a person's sex, sexually explicit or suggestive comments, and displaying sexually suggestive objects or pictures
• Racial harassment involves unwelcome conduct based on an individual's race or color
  • Includes racial slurs, offensive or derogatory remarks about a person's race, and displaying racially offensive symbols
• Religious harassment involves unwelcome conduct based on an individual's religion
  • Includes offensive remarks about a person's religious beliefs or practices, and religious slurs
• National origin harassment involves unwelcome conduct based on an individual's birthplace, ancestry, culture, or language
  • Includes ethnic slurs, offensive or derogatory comments about an individual's national origin, and mocking someone's accent or manner of speaking
• Age-based harassment involves unwelcome conduct based on an individual's age (40 or older)
  • Includes offensive or derogatory remarks about a person's age and age-related jokes or insults
• Disability-based harassment involves unwelcome conduct based on an individual's disability
  • Includes offensive or derogatory remarks about a person's disability, and mocking or belittling a person's disability
• Genetic information harassment involves unwelcome conduct based on an individual's genetic information
  • Includes offensive or derogatory remarks about a person's genetic information and improper disclosure of genetic information

Legal Framework and Regulations

• Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin
  • Applies to employers with 15 or more employees, including federal, state, and local governments, employment agencies, and labor organizations
• The Age Discrimination in Employment Act (ADEA) protects individuals 40 years of age or older from employment discrimination based on age
  • Applies to employers with 20 or more employees, including state and local governments, employment agencies, and labor organizations
• The Americans with Disabilities Act (ADA) prohibits employment discrimination against qualified individuals with disabilities
  • Applies to employers with 15 or more employees, including state and local governments, employment agencies, and labor organizations
• The Genetic Information Nondiscrimination Act (GINA) prohibits employment discrimination based on genetic information
  • Applies to employers with 15 or more employees, including state and local governments, employment agencies, and labor organizations
• The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for enforcing these laws and investigating complaints of workplace harassment and discrimination
• Many states and local jurisdictions have additional laws that provide broader protections against workplace harassment and discrimination
• Employers can be held liable for harassment by supervisors, co-workers, and even non-employees if they knew or should have known about the harassment and failed to take prompt and appropriate corrective action

Recognizing Hostile Work Environments

• A hostile work environment exists when unwelcome conduct based on a protected characteristic is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive
• Factors to consider in determining whether a hostile work environment exists include the frequency and severity of the conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance
• Examples of conduct that may contribute to a hostile work environment include offensive jokes, slurs, epithets, name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance
  • A single incident of harassment may be sufficient to create a hostile work environment if it is severe enough (sexual assault)
• The conduct must be both subjectively and objectively offensive, meaning that the victim must perceive the conduct as hostile or abusive and a reasonable person in the victim's position would also find the conduct hostile or abusive
• The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer (client, customer)
• The victim does not have to be the person harassed but can be anyone affected by the offensive conduct
• Harassment does not have to result in economic injury or discharge to be unlawful

Employer Responsibilities and Liability

• Employers are responsible for providing a work environment free from harassment and discrimination
• Employers can be held liable for harassment by supervisors, co-workers, and even non-employees if they knew or should have known about the harassment and failed to take prompt and appropriate corrective action
  • Employers are automatically liable for harassment by a supervisor that results in a negative employment action (firing, failure to promote)
• Employers should have a clear and comprehensive anti-harassment policy that is regularly communicated to all employees
  • The policy should define harassment, state that it will not be tolerated, provide a complaint procedure, and assure employees that they will not face retaliation for reporting harassment
• Employers should provide regular training to all employees on the anti-harassment policy and complaint procedure
• Employers should promptly and thoroughly investigate all complaints of harassment and take appropriate corrective action to stop the harassment and prevent it from recurring
  • Corrective action may include disciplining or terminating the harasser, separating the harasser and the victim, and providing additional training to the workforce
• Employers should document all complaints of harassment and the steps taken to investigate and resolve them
• Employers should not retaliate against employees who report harassment or participate in an investigation

Prevention Strategies and Policies

• Develop a clear and comprehensive anti-harassment policy that defines harassment, states that it will not be tolerated, provides a complaint procedure, and assures employees that they will not face retaliation for reporting harassment
  • Ensure that the policy is regularly communicated to all employees and included in employee handbooks and other relevant documents
• Provide regular training to all employees on the anti-harassment policy and complaint procedure
  • Training should cover the types of conduct that constitute harassment, the complaint procedure, and the consequences of engaging in harassment
• Encourage employees to report harassment and provide multiple channels for reporting (supervisor, HR, hotline)
  • Ensure that employees know that they will not face retaliation for reporting harassment and that all complaints will be promptly and thoroughly investigated
• Take prompt and appropriate corrective action to stop harassment and prevent it from recurring
  • Corrective action may include disciplining or terminating the harasser, separating the harasser and the victim, and providing additional training to the workforce
• Foster a culture of respect and inclusivity in the workplace
  • Encourage open communication, provide diversity and inclusion training, and model appropriate behavior at all levels of the organization
• Monitor the workplace for signs of harassment and address any concerns promptly
  • Regularly survey employees about their experiences with harassment and take action to address any issues identified
• Hold managers and supervisors accountable for preventing and addressing harassment in their departments
  • Include harassment prevention and response in performance evaluations and provide additional training and support as needed

Reporting and Investigation Procedures

• Employees who experience or witness harassment should report it promptly to their supervisor, HR, or another designated individual
  • Employers should provide multiple channels for reporting harassment, including an anonymous hotline or online reporting system
• Supervisors and managers who receive a complaint of harassment or witness harassing behavior should report it promptly to HR or another designated individual
  • Failure to report harassment can result in disciplinary action, up to and including termination
• HR or another designated individual should promptly and thoroughly investigate all complaints of harassment
  • The investigation should include interviews with the complainant, the alleged harasser, and any witnesses, as well as a review of any relevant documents or other evidence
• The investigation should be conducted impartially and confidentially to the extent possible
  • Information about the complaint and investigation should be shared only on a need-to-know basis
• The investigator should make a determination based on the preponderance of the evidence standard, meaning that it is more likely than not that the alleged conduct occurred
  • If the investigation substantiates the complaint, the employer should take prompt and appropriate corrective action to stop the harassment and prevent it from recurring
• The complainant and the alleged harasser should be informed of the outcome of the investigation and any corrective action taken
  • The employer should follow up with the complainant to ensure that the harassment has stopped and that there has been no retaliation
• The employer should document all complaints of harassment and the steps taken to investigate and resolve them
  • Documentation should be maintained in a secure location separate from personnel files

Case Studies and Recent Developments

• In the case of Meritor Savings Bank v. Vinson (1986), the Supreme Court recognized that sexual harassment is a form of sex discrimination prohibited by Title VII and established the standards for determining when a hostile work environment exists
  • The Court held that a hostile work environment exists when unwelcome conduct based on sex is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive
• In the case of Faragher v. City of Boca Raton (1998) and Burlington Industries, Inc. v. Ellerth (1998), the Supreme Court established the standards for employer liability for harassment by supervisors
  • The Court held that employers are automatically liable for harassment by a supervisor that results in a negative employment action (firing, failure to promote)
  • For harassment by a supervisor that does not result in a negative employment action, employers can avoid liability by showing that they took reasonable steps to prevent and promptly correct any harassing behavior and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer
• In the case of Oncale v. Sundowner Offshore Services, Inc. (1998), the Supreme Court held that same-sex sexual harassment is actionable under Title VII
  • The Court held that the critical issue is whether the conduct was based on sex and was severe or pervasive enough to create a hostile work environment
• In recent years, the #MeToo movement has brought increased attention to the issue of sexual harassment in the workplace and has led to a surge in complaints filed with the EEOC and state and local fair employment practices agencies
  • The EEOC has reported a significant increase in the number of sexual harassment charges filed in fiscal year 2018 compared to previous years
• Many states and local jurisdictions have enacted laws that provide broader protections against workplace harassment and discrimination than federal law
  • For example, some states have extended protections to independent contractors and interns, lowered the threshold for establishing a hostile work environment, and required employers to provide harassment prevention training to all employees
• Employers have also faced increased scrutiny and liability for failing to prevent and address workplace harassment
  • High-profile cases involving companies such as Uber, Fox News, and The Weinstein Company have highlighted the need for employers to take proactive steps to prevent and address harassment in the workplace