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Most employers do or should have zero tolerance policies regarding workplace harassment. These policies don’t exist just for legal reasons. Harassment is bad in itself, plus it interferes with productivity. But not all harassing behavior violates employment discrimination laws.
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What Is Harassment?
Under state and federal employment discrimination laws, harassment is unwelcome conduct based on a protected category.
These laws collectively protect many characteristics.
At the federal level: Title VII protects race, color, sex, religion, and national origin. The Americans with Disabilities Act protects qualified individuals with disabilities. The Age Discrimination in Employment Act protects age, for workers 40 or older. The Genetic Information Nondiscrimination Act protects genetic information, which includes a broad range of information about family medical history.
State laws often protect these same categories, plus others. Some states protect sexual orientation, marital status, familial status, etc. Michigan law even protects workers from harassment because of height and weight.
These laws also usually protect against harassment based on an individual having complained of discrimination. In other words, they prohibit retaliation.
However, one or two isolated comments, even if unwelcome, may not violate these laws.
Unlawful Workplace Harassment
Harassment becomes unlawful where:
enduring the offensive conduct becomes a condition of continued employment, or
the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
The “reasonable person” standard means that it’s not enough that the specific employee involved feels this way. If most similarly situated people would not be offended, then the conduct wouldn’t rise to the level of being unlawful. Again, that doesn’t mean it is acceptable in the workplace.
Forms of Harassment
Harassment can come in numerous forms, including:
offensive jokes,
slurs,
epithets or name calling,
physical assaults or threats,
intimidation, ridicule or mockery,
insults or put-downs,
offensive objects or pictures, and
interference with work performance.
Note that the anti-discrimination laws protect employees from workplace harassment not only by co-workers and supervisors, but also by third parties. Thus, employers must prevent and remedy inappropriate conduct by vendors, customers, visitors, contractors, etc., against their employees. If employers permit harassment by outsiders to persist to the point of unlawful harassment, then the employer may be legally responsible.
How To Avoid Unlawful Harassment?
The best way to avoid unlawful harassment is to prevent harassment altogether. This is why employers should have anti-harassment policies that go beyond just what the law prohibits. It’s not a good idea to permit behavior that even comes close to the line.
In addition to a well-written and carefully followed policy, employers should also train employees about harassment. Many employers include anti-harassment training in their on-boarding process. But it is a good idea to also provide periodic group training to all employees. Several states require private employers to do so.
Finally, employers must respond promptly to all complaints of workplace harassment. Investigating thoroughly and taking appropriate action will hopefully avoid escalation. If not, the employer’s good faith attempt to keep the workplace free of harassment may still help avoid liability.
Many state and federal laws prohibit employment discrimination across the United States. While it is ideal to prevent discrimination before it occurs, sometimes employers do receive complaints and have to deal with them. How you handle complaints of employment discrimination can have a significant impact on your organization, for better or worse. Hopefully by reading this it will be for the better!
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What Laws Prohibit Employment Discrimination?
At the federal level, some of the key employment discrimination laws are:
Title VII of the Civil Rights Act of 1964 (race, color, sex, national origin, religion)
Americans with Disabilities Act (disability, perceived disability)
Age Discrimination in Employment Act (age: 40+)
Genetic Information Nondiscrimination Act (genetic information)
Equal Pay Act (sex: compensation)
Across the State of New York, the New York Human Rights Law also provides protection based on the following categories:
Race
Creed
Color
National origin
Sexual orientation
Military status
Sex
Age
Marital status
Domestic violence victim status
Disability
Pregnancy-related condition
Predisposing genetic characteristics
Prior arrest or conviction record
Familial status
For employees in the five boroughs of New York City, the New York City Human Rights Law also provides protection based on the following characteristics:
Age
Alienage or citizenship statue
Color
Disability
Gender (including sexual harassment)
Gender Identity
Marital status and partnership status
National origin
Pregnancy
Race
Religion/Creed
Sexual orientation
What Is Employment Discrimination?
Generally speaking, discrimination under the above laws is an adverse or negative impact that is based, at least in part, on one of the legally protected categories. Discrimination may occur with respect to hiring, firing, promotion, compensation, or other terms and conditions of employment. Discrimination also includes harassment.
Unlawful harassment consists of unwelcome conduct that becomes a condition of continued employment and is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
The employment discrimination laws also prohibit retaliation for opposing unlawful discriminatory practices.
Internal Employment Discrimination Complaints
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Sometimes employees will make employment discrimination complaints to their employers directly. They may first complain to human resources, a supervisor, or perhaps an owner of the company. These complaints should always be taken very seriously. Under the various employment discrimination laws, employers may sometimes have legal defenses based on whether they have been made aware of alleged discrimination and how they responded to the allegations. Obviously, evidence that legitimate complaints were ignored will not help the employer’s case!
A lead investigator (often a human resources professional) should then investigate the allegations in the complaint. This will usually begin with interviewing the complaining employee. If applicable, other witnesses and the alleged discriminator(s) should also be interviewed. Once the investigator has completed the investigation, he/she should prepare findings and recommend an outcome. The outcome should usually be conveyed to the complaining employee. Sometimes additional employees, such as alleged harassers and relevant supervisors will also need to be notified.
If warranted, the employer may take disciplinary action against one or more employees as a result of the allegations. In some cases, appropriate corrective action will instead involve making changes to workplace policies, procedures, etc. In other cases, the aggrieved employee may receive a job change, compensation correction, or other modification to remedy the perceived discrimination.
Employment Discrimination Complaints to Governmental Agencies
In many cases New York employees have a choice of filing employment discrimination complaints with either the New York State Division of Human Rights (State Division) or the U.S. Equal Employment Opportunity Commission (EEOC). There are also some local civil rights agencies within the state, such as the New York City Commission on Human Rights. In many cases, a complaint filed with one of these agencies will be cross-filed with another. Usually, however, one agency takes the lead in investigating a particular complaint.
Once the State Division or EEOC receives a complaint that is valid on its face, they usually send a copy of the complaint to the employer involved. Employers are first given the opportunity to submit a position statement and relevant documents in response to the allegations made in the complaint. Employers should take this step very seriously, as it sets the basis for their defense to the claims made. Most employers should involve legal counsel familiar with responding to employment discrimination claims at this stage.
The position statement will explains the employer’s side of the story. Sometimes the employee’s account is accurate, but incomplete. Other times, it is inaccurate in the first place. Either way, the reality is that the employer may know more about the circumstances than the employee does at this stage.
Once the agency receives the employer’s position statement, they typically send it to the complaining employee for review and comment. Therefore, a complete, well-written position statement can be used not only to show the government investigator that no discrimination occurred, but also to demonstrate to the employee that they weren’t wronged in the way they thought they were. This can sometimes persuade the employee to either withdraw or at least lose interest in their complaint.
After receiving the position statement and any rebuttal statement from the complainant, the agency may conduct further investigation. This can include a request for additional documents or other evidence or interviews with individuals involved. When interviewing (non-complainant) supervisory employees, the State Division and EEOC will usually permit an attorney representing the employer to be present. The investigators may seek contact information to be able to speak to non-supervisors directly, without employer representatives present.
Sometimes the agencies will hold investigatory conferences where both the employer and complainant will be present together. These may occur either by phone or in person. Typically, the investigator asks all of the questions, and the parties do not get to cross-examine each other. Nonetheless, employers should have legal representation at this stage. Attorneys can help ensure that all of the helpful information is presented, such as by subtly suggesting that the investigator may want to ask a particular question. Plus, it best that the attorney have the opportunity to observe all witnesses present for the investigative conference in case the matter proceeds to a hearing or further litigation.
Often investigators will conclude an investigatory conference by requesting additional information from either or both parties. After all information is submitted, the State Division or EEOC will make a determination as to whether to proceed with the case.
Possible Outcomes of Agency Investigations
After completing its investigation, the New York State Division of Human Rights will issue either a “Probable Cause” or “No Probable Cause” finding. If they find Probable Cause, then the case will continue to a public hearing. The hearing is similar to court trial, but is somewhat less formal and usually held in a conference room rather than a court room. A No Probable Cause finding ends the administrative case in favor of the employer; however, employees can appeal the State Division’s determination through the courts.
In most cases the EEOC will issue a Notice of Right to Sue to the employee regardless of its investigatory findings. This Notice gives the complaining party 90 days to file a lawsuit in court under the applicable federal employment discrimination statutes. The Notice of Right to Sue will further identify the basis for the dismissal, essentially again indicating whether the EEOC found any basis for the charge of discrimination. However, the EEOC’s finding does not determine the outcome of a possible court case.
If it finds a case particularly worthy of pursuing, the EEOC can file a lawsuit on its own behalf against the employer on the basis of an employee’s discrimination claim. Given limited enforcement resources, the EEOC only takes a small percentage of charges to litigation. Often these are cases affecting numerous employees or featuring especially egregious examples of discrimination.
If an employment discrimination case ends up in either an administrative public hearing or in court, then employers will particularly benefit from having had legal counsel involved throughout the process.
Don’t Forget This Part
It’s not the end of the world if your business receives an employment discrimination complaint. With the proliferation of laws protecting employees, any organization with employees can be hit with a complaint at any time. Sometimes there is just a misunderstanding that needs to be worked out. Other times, the process will take longer to resolve, but employers often prevail in these matters.
And please do obtain legal advice, especially once an administrative agency like the New York State Division of Human Rights or the EEOC gets involved. Experienced employment lawyers can offer various levels of assistance with the process depending on your needs and circumstances. If you think I would be the right person to assist you, let me know.
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