Sexual Harassment and Discrimination Prevention in the Workplace

Thursday, Nov 30th, 2017

The Equal Employment Opportunity Commission, or EEOC, reports approximately 12,000 sexual harassment and 90,000 discrimination complaints every year. More cases are reported annually that are handled internally by companies. Others cases go unreported. All cases create a hostile workplace.

Part I: Discrimination

Discrimination is the unfair treatment of an employee based upon their protected class or category, rather than individual merit.

Protected classes and categories include:

• Sex
• Race
• Color
• National origin
• Religion
• Age
• Genetic predisposition

Pregnant women and certain military and veteran statuses are also protected. Many companies also include sexual orientation as a protected status. Discrimination can be verbal, non-verbal, physical, deliberate or unintended. It can take place as a one-time event, or as an ongoing practice.

OSHA also protects employees from discrimination if they:

• Report a work-related fatality, injury or illness
• File safety and health complaints
• Ask for access to their medical records

Applicable Laws and Policies

Discrimination is prohibited by the following laws:

• Title VII of the Civil Rights Act of 1964
• Americans with Disabilities Act
• Fair Wages Act
• Age Discrimination Act
• Pregnancy Discrimination Act
• Uniformed Services Employment and Reemployment Rights Act
• Genetic Information Nondiscrimination Act (GINA)

Part II: Types of Discrimination

Discrimination can take many different forms, and all of them are illegal in the workplace. Employers may not have policies or practices that have a disproportionately negative effect on individuals with any protected status. This includes policies and practices related to:

• Job advertising/recruitment
• Hiring practices
• Pay
• Benefits
• Conditions of employment
• Job assignments
• Training/apprenticeships
• Promotions
• Disciplinary actions
• Firing

It’s against the law to make any employment decisions based on these protected classes or categories. Examples include:

• Refusing to promote an employee because they are of Latino descent
• Not hiring someone whose genetic makeup increased their chances of cancer
• Firing a woman for becoming pregnant

Harassment

It is also considered discrimination to require employees to endure harassment on the job. The EEOC defines harassment as unwelcome conduct that is based on a person’s protected status and alters the conditions of a victim’s employment. It can range from unwelcome comments to physical assault. Whether the victim submits to or rejects the conduct, it is still considered harassment.

Harassment is prohibited whether it comes from supervisors, co-workers, or even non-employees. Even if the harassment comes from a customer or vendor, the employer has a duty to protect their employees from it.

It doesn’t matter if the conduct is intended to be offensive. If the person on the receiving end feels harassed, it should be treated as harassment. Employees that witness offensive behavior can also be victims. An objective investigator must determine if a behavior constitutes harassment.

Sexual Harassment

Sexual harassment is harassment on the basis of a person’s sex, and it is of special concern to employers. Sexual harassment includes a range of behaviors from unwelcome flirtation to forced sexual activity. Harassment doesn’t have to be of a sexual nature, but can include offensive generalizations, comments or jokes about a person’s sex or gender.

Types of Harassment

There are three basic types of harassment:

• “Quid pro quo”
• Hostile work environment
• Online harassment

Quid Pro Quo

Quid pro quo loosely means “something for something.” It occurs when people in power demand favors in return for employment, promotion, or pay increases. Examples include:

• A supervisor promising a raise if an employee will go out with them
• An employer threatening to fire an employee if they don’t sleep with them
• A manager threatening to restrict advancement unless an employee attends the manager’s church

Quid pro quo claims usually only require one event to be considered sexual harassment. Quid pro quo is unlawful whether the employee consents to the request or not.

Hostile Work Environment

Unlike quid pro quo, hostile work environment harassment can be committed by anyone, including customers, management or employees. This type of harassment can be established with a pattern of behavior. Examples include:

• Offensive jokes or stories
• Displaying demeaning or offensive pictures
• Unwelcome sexual advances (verbal or physical)
• Unwelcome touching

It doesn’t matter if the person creating the uncomfortable environment didn’t intend to be offensive, as long as a reasonable person in the victim’s group would feel harassed.

Online Harassment

Online harassment usually follows the same pattern as hostile work environment harassment.

Examples include:

• Inappropriate jokes, images or videos sent over the Internet
• Cyberstalking
• Sending threatening or sexually suggestive text messages, instant messages, emails or social media posts

Regardless of the medium, unwelcome sexually-oriented messages can be considered sexual harassment.

Part III: Responding to Discrimination

Victims have rights. First, the victim should demand that the improper conduct end. If the discrimination doesn’t stop, they have a right to file a complaint with the company. Reporting policies vary. Your company’s policy should:

• State who is responsible for receiving or investigating reports
• Define conduct that is illegal or prohibited by company policy
• Outline the procedure for investigating claims of discrimination
• Protect the victim from retaliation

It is unlawful to retaliate against someone for filing a complaint or participating in an investigation. This protection applies even if an investigation determines that the conduct was not unlawful.

Corrective Actions

When a complaint is reported, corrective action should be taken immediately. Actions toward the perpetrator may include:

• Oral or written warnings
• Reprimands
• Job transfer
• Reassignment
• Demotion
• Reduction of wages
• Job suspension
• Termination

Corrective action depends on the incident. The company may monitor the perpetrator or require counseling to ensure that the incident will not happen again.

EEOC and Legal Requirements

Most companies address incidents internally. If a victim feels that the discrimination hasn’t been addressed properly, they have a right to file a claim with the EEOC or a state agency. They also have the right to file a claim if the discrimination continues after a corrective action. A claim filed with the state will usually be filed simultaneously with the EEOC. The EEOC makes recommendations based on the facts of the case. The victim can also pursue their claim by suing a perpetrator and/or the employer.

Summary

No one wants to work in a hostile environment. As a manager, you act as a role model for your workplace. You must recognize harassment and discrimination, protect a victim’s rights, and know how to handle incidents if they occur.

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