Harassment in the Workplace
Did you know that harassment and discrimination went hand in hand I will demonstrate how they go together and I will give you example of different types of harassment/discrimination. Finally, I will explain how, as an employer or manager, to prevent harassment in the workplace. Avoiding the harassment scenario is the best way to prevention.
Harassment is an unwelcome conduct based on a persons race, color, religion, sex (including pregnancy), national origin, age (40 or older), and disability. Harassment is a type of employment discrimination that violates:
* Title VII of the Civil Rights Act of 1964
* Age Discrimination in Employment Act of 1967 (ADEA)
* Americans with Disabilities Act of 1990 (ADA)
It is against the law to harass when the following situations are present:
* When an offensive conduct becomes a condition of continued employment
* When the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive
The following are types of conduct that may be construed as offensive:
* Offensive jokes?
* Name calling
* Physical assaults or threats
* Ridicule or mockery
* Insults or put-downs
* Offensive objects or pictures
Antidiscrimination laws protect individuals against retaliation, which is also considered harassment, when they file a discrimination charge, testify, or participate in an investigation that they believe discriminates against individuals, in violation of these laws.
Harassment comes in different shapes and sizes, the person harassing can be the victims supervisor, an agent of the employer, a co-worker, a supervisor in another area, or a non-employee. Harassment does not have to result in economic injury to, or discharge of, the victim to be harassment. A victim can be anyone affected by the harassment and does not have to be the actual person being harassed.
This is an actual EEOC discrimination case pending in the courts since 2012, taken from the EEOC website (eeoc.gov):
???Northern Star Hospitality d/b/a Sparx Restaurant: The EEOC alleges that Sparx, a Menomonie, Wisconsin restaurant, said that managers posted racist imagery and then fired an African-American employee after he complained about a picture of African-American actor Gary Coleman and a dollar bill which had been defaced such that a noose was around the neck of George Washington, whose face had been blackened, taped to a cooler in the restaurant. The EEOC also alleged that, on the dollar bill were swastikas and the image of a man in a Ku Klux Klan hood. Sparx managers told the charging party that they posted the images the evening before but, when the charging party complained, they insisted that it was ???a joke???. The charging party was terminated within weeks of complaining about the racist imagery, for allegedly having ???a bad attitude.???
Sexual harassment is another form of unlawful harassment. A person may not harass an individual because of their sex. Sexual harassment includes; unwelcome sexual advances, requests for sexual favors, and verbal or physical harassment of a sexual nature. However, harassment does not have to be of a sexual nature, it can be an offensive remark about a persons sex. The victim and the harasser can be either a man or a woman or of the same sex. The law does not specifically prohibit teasing, or isolated incidents, but these situations are considered harassment when they result in an adverse employment decision. I found a sexual harassment case on the EEOC website that involved The Finish Line, an athletic store located in Franklin, Tennessee and three female employees ages 16 and 17. The lawsuit stated that a 38 year old General Manager employed by Finish Line subjected three female employees to unlawful sexual harassment. The lawsuit also alleged that Finish Line forced the female employees to quit as a result of the sexually abusive work environment. In addition, Finish Line retaliated against one female employee by reducing her hours because she resisted the harassnent. This violates Title VII of the Civil Rights Act of 1964. Ultimately the jury awarded the victims $30,000 in compensatory damages, with an additional stipulation to pay back pay. This ruling was in February 2013. According to Faye A. Williams, EEOC regional attorney (Williams), ???This jury verdict refeinforces the EEOC??™s continued commitment to securing fair and equal treatment for women of all ages in the workplace.??? She was also quoted as saying, ???It also sends a clear message to employers that there is a price to pay for sexual harassment in the workplace.
Offensive remarks about a persons age is also harassment. It is illegal to harass and/or discriminate against a person regarding their age. As was mentioned earlier, harassment violates the, Age Discrimination in Employment Act of 1967 (ADEA). According to the EEOC (eeoc.gov), this act is, “to prohibit age discrimination in employment.”
Workplace bullying is a new type of harassment. Do you ever wonder what childhood bullies do when they grow-up Do they stop being bullies or does the bully just take a different shape According to an article I found online, (Leah P. Hollis), ???Thirty-seven percent of American workers will experience bullying at work sometime in their lifetime.??? A study showed that about sixteen percent of higher education professionals had left a job because of bullying. It is surprising that this would be the case in higher education. The study reported that universities that allowed bullying ended up in court, as the defendant, in EEOC complaints.
As I have said harassment comes in many forms. AIDS discrimination is but another illegal discrimination against working individuals based on an AIDS diagnosis. Some, but not all, employment discrimination laws, to protect disabled workers, have been amended to include HIV infection as a protected class. However, it is not clear whether AIDS is per se disabling. There have been other legal actions in which job applicants or employees were subjected to negative employment actions based on AIDS discrimination that may include Title VII disparate impact theory or wrongful discharge. There have been instances where other state and local laws give some protection.
In my research I found that most of the litigation regarding AIDS discrimination have been based on state and federal laws protecting on the grounds of disability, but disability laws vary in what they protect and sometimes only apply to public employers. The American??™s with Disability Act (ADA) has amended the definition of ???disability???, as being a physical or mental impairment that substantially limits one or more major life activities.
In an ADA Supreme Court case, ???Bragdon v. Abbott,??? the Supreme Court ruled AIDS to be an impairment of a ???major life activity.??? This ruling did not decide whether HIV is per se disabling or if the infected individual has a disability because of how they are regarded. Individuals who are infected, but are asymptomatic, meaning they show no symptoms, are able to work, and is not a risk to others, may still be considered to have a disability. Some AIDS cases involve homosexual or bisexual men, but as you know, homosexuals are not a protected class under Title VII. There are about 25 jurisdictions that have statutes that prohibit discrimination based on sexual orientation. Please don??™t get the impression that all AIDS cases are of a homosexual nature. Heterosexuals can and have contracted the HIV/AIDS virus. According to the website (Learn About HIV and AIDS), ???HIV is an equal opportunity virus. Newborn babies, women, seniors, teens, and people of all races or nationalities can have HIV. The prevalence of the virus in different groups varies (as it does for other diseases), but it can affect anyone. Of HIV positive people worldwide, slightly more then half are women.??? The constitution has provisions that have bearing on AIDS in employment, they are:
* Equal Protections
* Due Process
To date, privacy has been the most successful defense against this type of discrimination. Privacy has protected public employees from unreasonable medical testing or questioning. State courts have restricted the use of test results in employment decisions. Several states have amended their fair employment practice laws to include coverage of AIDS and AIDS-related conditions.
Sexual orientation brings up yet another form of discrimination in the workplace. Individuals who share their sexual orientation with co-workers, managers, etcetera may set themselves up for harassment. Some individuals may not divulge their sexual orientation and their co-workers may assume they know and harass the employee. Either way, there are no federal laws in place to protect these individuals. They are not a protected class under the Title VII Civil Rights Act of 1964, although, many states are adopting their own statues regarding sexual orientation.
Sexual orientation discrimination is harassment based on an individual??™s perceived or actual gay, lesbian, bi-sexual, or trans-gender orientation. Many workplaces and some states have policies and laws against this type of discrimination. Things like being given baseless write-ups, being overlooked for a promotion, and wrongful termination, because the employer or manager disagrees with a person??™s sexual orientation are what is meant by sexual orientation discrimination or harassment. Other employees in the workplace may harass the employee with name calling and slurs.
I found an example online describing a scenario of sexual harassment. According to, (Firm), ???Amy and Linda, a lesbian couple, are expecting their first baby. Excited for them, Ted a Tina circulated a card around the office for everyone to sign. When Manager Cindy, who had previously thrown all of the baby showers for the pregnant women in her office, tore up Amy and Linda??™s baby card, commented on how she would have promoted Linda is she??™d known she was gay, and wrote up each of then for disrupting company productivity, the couple contacted human resources. Human resources was able to talk to Cindy, reminding her of not only the company policy, but also the state law against sexual orientation discrimination. The couple??™s write-up was revoked, and although Cindy is entitled to her opinion, she learned how to not let it interfere with the management of her team. Had human resources not effectively handled the situation, Amy and Linda may have had a legal claim against Cindy and the company.???
At the present time there are no federal statutes prohibiting private sector sexual orientation discrimination. Several proposals have been considered but they have not passed. At the present time, the Employment Non-discrimination Act of 2009, would prohibit discrimination based on sexual orientation and gender identity, is being considered. This Act would prohibit employers from making discriminatory decisions about firing, hiring, promoting or compensating an employee based on sexual orientation or gender identity. There are sexual orientation discrimination laws at state levels. Almost half of the United States, have laws that prohibit sexual orientation discrimination in public and private sectors. Please notice that Missouri is not one of them. These states include:
* California Colorado Connecticut
* Hawaii Illinois Iowa
* Maine Maryland Massachusetts
* Minnesota Nevada New Hampshire
* New Jersey New Mexico New York
* Oregon Rhode Island Vermont
* Washington Wisconsin
If you live in a state that does not allow for protection from sexual orientation discrimination, you should check with your employer, they may have polices in place for your protection. The law states, that these laws can be more, but not less, strict than the state or local law??™s standards. These policies often include disciplinary action that can be taken against managers who engage in sexual orientation discrimination. Such action may be, reversing the discriminatory action, and/or terminating the manager.
Still yet, another form of harassment in the workplace applies to individuals with disabilities. Discrimination occurs when an employer treats an applicant or an employee unfairly because he/she has a history of a disability, such as cancer that is in remission or he/she may have a physical or mental impairment that is lasting or expected to last six months or less. The law states than an employer must provide reasonable accommodation to an employee or job applicant with a disability, unless it would cause the employer an undue hardship. Sometimes, individuals are discriminated against for a disability even if they, themselves, do not have the disability. For example, if an employee??™s husband has a disability, an employer may discriminate against the employee. This makes sense to the employer because they are under the impression that if the husband has a disability the wife/employee will miss work to care for him.
The last form of harassment and/or discrimination I will cover is genetic information discrimination. According to the EEOC website, (eeoc.gov), ???Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment, took effect on November 21, 2009.??? Title II of GINA says that it is illegal to discriminate because of genetic information. It prohibits the use of genetic information when making employment decisions. It restricts employers, employment agencies, joint labor-management training and apprenticeship programs, and labor organizations from asking for, requiring, or buying genetic information. According to the EEOC, (eeoc.gov), ???they enforce Title II of GINA. The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
The best way to eliminate harassment at work is prevention. Employers should take appropriate steps to prevent and correct harassment. Employers should make it clear that harassing conduct will not be tolerated. They should establish a plan of action for employees to confidentially report any type of harassment in the workplace. Employers need to provide proper training to managers and employees. During the training it should be stressed to the employee, that if they encounter any type of harassment, they are to immediately inform the harasser that they need to stop the inappropriate behavior or conduct. Most important, employers need take immediate action when there is an employee complaint. To be effective, the employees need to know that their concerns will be addressed immediately and taken seriously.
Successful planning is the most important part of a diverse and stress-free work environment. Employers should have a direct plan of action, such as: training, policies, procedures, and consequences to prevent and hopefully avoid a bad situation getting worse and costing the company money, not to mention their reputation.
Employers are liable for harassment by a supervisor if it results in a negative action against the employee, such as; termination, failure to promote or hire, and loss of wages. If the result is a hostile work environment, the employer can avoid liability if they can prove that they tried to prevent and immediately correct the behavior and the employee failed to take advantage of any grievance or preventative measures provided by the employer. The employer will be responsible for harassment by non-supervisory employees or non-employees (e.g., independent contractors or customers on the premises), if the employer knew, or should have known about the harassment and failed to take prompt and corrective action. According to the EEOC website, (eeoc.gov), ???if the EEOC investigates an allegation, they will review the entire record, including the nature of the conduct, and the context in which the alleged incidents occurred.??? A determination is made on a case-by-case basis.
eeoc.gov. n.d. 15 05 2013
Firm, Kasper Law. Sexual Orientation Discrinination in the Workplace. n.d. 16 06 2013
Leah P. Hollis, Ed.D. Not Just Childs Play Bullying. 05 12 2012. 16 06 2013
Learn About HIV and AIDS. n.d. 06 06 2013
Lex K. Larson, Esq. LexisNexis. 2013. 16 06 2013
Williams, Faye A. Jury Rules for EEOC in Sexual Harassment Case Against the Finish Line. 02 2012. 16 06 13