Harassment Discrimination and Retaliation
Federal, state, and local discrimination laws protect both employees and applicants from having actions taken against them because of protected characteristics such as age, race, sex, and religion. Employers’ obligations under discrimination laws are far reaching and go beyond termination decisions. Discrimination laws apply in areas from determining the appropriate questions to ask at a job interview, to the use of gender-specific language at work; from English-only workplace rules, to scheduling around religious holidays; from determining who is permitted to use which bathrooms, to dress code modifications. Because discrimination laws are extensive, touching all areas of applicant and employee relations, and are also frequently complex, it is imperative that employers understand how to comply with these laws to protect their businesses.
If an employer does find itself facing a claim of discrimination, in order to defend against such an allegation, the employer needs demonstrate that it had “legitimate business reasons” for its actions. “Legitimate business reasons” are reasons for an employer’s behavior which are rooted in an individual’s performance, skills, education, behavior, or attitude. A legitimate business reason can also be rooted in a business’ needs, such as when it needs to reorganize or downsize.
On rare occasions, a protected characteristic can be considered a legitimate business reason to take an adverse employment action against an applicant or an employee. This situation usually arises with disability discrimination claims. In such a case, a person’s disability might affect his or her ability to do the job for which he or she applied or was hired. For example, it would not be unlawful to fail to hire the blind applicant to drive a company van, even when the reason to decline to hire this individual is directly due to her disability. Disability discrimination laws only protect “otherwise qualified” individuals with a disability. However, it should be noted that generally, other protected characteristics are irrelevant to a person’s job skills and abilities, and making an employment decision based on those characteristics can be dangerous and costly for the business.
Non-discrimination laws also prohibit employers from allowing the creation of workplaces where individuals are made to feel uncomfortable at work because of their protected characteristics. Name calling, exclusion from activities, unwanted sexual attentions, obscene or offensive jokes, and vulgar or discriminatory posters can all create a hostile working environment that can subject employers to claims of workplace harassment.
Generally, there are two types of harassment claims — 1) quid pro quo and 2) hostile work environment. In a quid pro quo harassment claim, an individual is alleging that a senior person in the reporting chain, often a direct supervisor, demanded favors (usually sexual) from that individual in order for him or her to obtain or keep a job or a benefit. In a hostile work environment claim, the employee is alleging that there was a course of conduct that was unwelcome, based on a protected characteristic, and was severe or pervasive enough to create an abusive or offensive working environment. Upon receiving any reports or complaints of harassment, it is a company’s obligation to promptly and thoroughly investigate the claim and determine whether they find it to be credible. Following a determination that harassment occurred, the company’s next obligation is to take steps that stop the harassment.
A claim of retaliation comes about after an employee who engages in some type of legally-protected activity, such as filing a claim of workplace harassment, taking workers’ compensation or pregnancy-related leave, or fulfilling a jury duty obligation, then suffers an adverse employment action, such as being let go. The individual is essentially asserting that the adverse action was taken because he or she engaged in the legally-protected activity and that the adverse action was the employer’s way of “getting back at,” or retaliating against, the individual. As with a discrimination claim, to combat a retaliation claim, an employer needs to demonstrate a legitimate business reason for the employment action that was taken.
Harassment, discrimination and retaliation claims can be prevented by having necessary employment policies and practices in place, and by educating company managers on both how to deal with complaints that wrongful actions occurred and how to avoid creating potential situations that employees view as harassing, discriminatory, or retaliatory. Furthermore, when internal claims are made, there is a proper way to address them. Our experienced lawyers work with our clients to help them understand the nuances of the federal, state, and local laws that apply to their businesses and provide services which include:
- Training for management on harassment, discrimination, and retaliation – specifically, how to avoid it and what to do when complaints are made;
- Training for management, human resources, or other individuals designated to investigate such claims;
- Shadowing company representatives investigating claims by providing guidance, outlining interview questions, analyzing interview results, and assisting the company to come to a conclusion, as well as structure appropriate steps to stop any harassment identified;
- Drafting and reviewing applicable employment policies;
- Providing phone and email guidance on the implementation and interpretation of harassment, discrimination and retaliation policies both generally and in specific situations;
- Providing phone and email guidance in the multiple situations where the harassment, discrimination, and retaliation laws could be implicated.
Harassment, discrimination, and retaliation claims can be brought by applicants, employees, and former employees in state and federal courts or in state and federal agencies tasked with enforcing such laws. Whatever the claims, our experienced litigators are zealous advocates for our clients’ rights, and work diligently to resolve these matters efficiently and cost-effectively. Our services include:
- Defending discrimination, harassment, and retaliation claims in state and federal courts and agencies;
- Assisting with internal investigations of current-employee claims;
- Connecting you with industry experts such as outside investigators where necessary;
- Representing you in alternative dispute resolution forums, such as mediation or arbitration, to resolve such claims efficiently and cost-effectively.