Discrimination & Harrassment

Last month The New Yorker published a story detailing years of claimed sexual harassment and misconduct by Hollywood producer Harvey Weinstein. Since then, it seems that every day features new allegations of similarly inappropriate behavior by public figures, from actors, to authors, to public radio executives. It is unclear whether this is a long- or short-term trend. It is, however, an opportune time for employers to review their own policies and procedures in place to prevent and respond to claims of sexual harassment.

Sexual harassment policies should be clear and unambiguous as to what is not appropriate for the workplace. They should prohibit unwelcomed sexual advances, requests for sexual favors, or any other verbal or physical conduct of a sexual nature. Policies should also make it clear that submission to such conduct must not be an implicit or explicit condition of employment, that response to such conduct will not serve as a basis for continued employment, and that such conduct will not be permitted to interfere with an employee’s work. In sum, the goal of any policy should be to clearly prohibit both specific harassment and the creation of a hostile work environment.

An effective policy must go beyond prohibiting demands for sexual favors or inappropriate physical touching at work. Actions such as sexually-oriented “jokes” or “teasing” should not be permitted in the workplace. Offensive flirtations, repeated verbal abuse of a sexual nature, degrading comments about appearance, and the display of sexually suggestive or explicit materials must also be clearly banned. Employers should also clearly state that subtle pressure for sexual activity, physical contact or blocking of movement are also inappropriate.

These prohibitions, however, do not mean employees cannot have friendly interactions. Indeed, we recommend including a caveat that the policy does not consider things like occasional socially acceptable compliments or consensual social relationships as harassment. The stated goal of the policy should be to eliminate unwelcomed, intimidating, hostile, or offensive behavior. It should also be noted that the policy applies to and protects employees of all genders.

As important as a strong anti-sexual harassment policy is, there must also be a complete procedure for enforcing it. This procedure should have at least two reporting mechanisms. The first should be what would be considered the “normal” reporting mechanism, an employee, position or department designated to receive complaints of harassment and investigate. There also needs to be a secondary reporting mechanism for when normal person is either the subject of the complaint or in a position where investigation may be too difficult. For example, if the normal investigator is the head of HR and the accused is her second-in-command, then the secondary reporting mechanism would be best to use. The goal is for an impartial, objective investigation to occur – not one that is just impartial, but also one that is properly perceived as impartial too.

The complaint procedure should also guarantee as much confidentiality as possible. Victims, witnesses, and those who report harassment should be assured their information will be kept as confidential as possible while still conducting a thorough investigation. They should also know that non-frivolous complaints will not result in discipline. So, if they report behavior in a good-faith belief that it violates the sexual harassment policy there will be no negative consequences even if the investigation cannot substantiate the claim. In contrast, complaints made in bad faith, to retaliate or harass, or to otherwise abuse the system should not be tolerated.

Every investigation into a complaint or possible situation of harassment must be thorough, objective, and unbiased. Investigators must seek out and interview witnesses. They should make it clear that neither the complainant nor the accused should have any inappropriate contact with the witnesses during the investigation. Investigators should also seek any documentation, video surveillance, or other tangible evidence of the alleged events available to them. All reasonable steps should be pursued to try to get as clear of a picture as possible as to what truly happened.

Lastly, the policy should clearly define the consequences of such unacceptable behavior. Recommended action for substantiated violations can range from a simple written warning all the way up to and including termination – whatever is necessary to stop the behavior and ensure it is not repeated and the victim (and others) are not at further risk. It should also be made clear that while discipline for violations of the policy may be progressive, the employer reserves the right to implement whatever punishment it deems appropriate, including termination.

Employers know that sexual harassment is a serious issue and should not be tolerated in any workplace. Beyond the civil liability it may bring, it makes a workplace undesirable and saps employee morale. It can hurt a company’s brand, reputation and standing in the business community. This general outline as to how such policies and procedures should work is a start, but smart employers will reach out to counsel to review and update their policies and procedures and make sure they are never the subject of any similar negative headline news articles.

 

 

California companies with five or more employees are subject to new legislation that prohibits criminal background screenings prior to a conditional offer of employment.  This legislation also prohibits requesting information about criminal history on an application or at a preliminary point in the hiring process.  Affected employers should carefully review the law’s requirements as set out in this advisory from attorneys from Troutman Sanders’ Labor & Employment and Financial Services Litigation Sections.

Read “California’s Statewide “Ban-The-Box” Law To Go Into Effect January 2018” here.

United States executive agencies are practically always on the same page when presenting to the public. So, it is incredibly unusual to see two such agencies taking positions directly contrary to one another in pending litigation. This, however, is exactly the current situation between the U.S. Department of Justice (DOJ), headed by Attorney General Jeff Sessions, and the Equal Employment Opportunity Commission (EEOC), chaired by Victoria Lipnic.

Last week, Mr. Sessions issued a memo setting out the Justice Department’s stance that Title VII does not protect individuals against discrimination on the basis of “gender identity per se, including discrimination against transgender individuals.” The memo states that the DOJ is now taking the position that “sex” (as used in Title VII) only means “biologically male or female.” This is a reversal of its 2014 policy under then-Attorney General Eric Holder that the word “sex” in the statute “extends to claims of discrimination based on an individual’s gender identity, including transgender status.”

Notably, the DOJ’s position now is directly contrary to the EEOC’s position on the matter. The EEOC’s position is that transgender status is protected under Title VII. In fact, the EEOC just filed suit against a tire company in Denver over alleged discrimination against a job applicant on the basis of transgender status. This is consistent with the EEOC’s 2016 Strategic Enforcement Plan, which includes “[p]rotecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex” as a top enforcement priority.

The DOJ has also come out swinging against the EEOC in a pending lawsuit on this very issue. In a case pending in the U.S. Court of Appeals for the Second Circuit, Zarda v. Altitude Express, the plaintiff, a skydiver, claimed that his employer fired him because of his sexual orientation. A three-judge Court of Appeals panel previously ruled that the instructor had no claim for sex discrimination under Title VII. However, the full court (as opposed to a three-judge panel) has agreed to review that decision.

So, the Second Circuit then asked the EEOC to file an amicus (“friend of the Court”) brief in the case. The EEOC argued that sexual orientation discrimination claims “fall squarely within Title VII’s prohibition against discrimination on the basis of sex.” Among other reasons, the EEOC’s brief states that any line drawn “between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results.”

Not to be outdone, the DOJ also filed an amicus brief with the Second Circuit in opposition to the EEOC (even though the Second Circuit had not asked for the DOJ’s input). The DOJ argued that this issue has been “settled for decades” and that Title VII does not prohibit sexual orientation discrimination “as a matter of law.” The DOJ went on to state that the question of whether “sexual orientation discrimination should be prohibited by statute, regulations, or employer actions” is one of “policy” and “[a]ny efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” The Court heard oral arguments in the case in late September 2017, with the EEOC and DOJ completely at odds.

This is not the only case where the DOJ has taken a position adverse to the EEOC’s position.  In a well-known case involving a Colorado cake shop which refused to make a cake for a gay couple in 2012 known as Masterpiece Cakeshop v. Civil Rights Commission (which is now pending before the U.S. Supreme Court), the Colorado Civil Rights Commission relied on a state statute that prohibits sexual orientation discrimination in public accommodations to order the cake shop to stop discriminating against same-sex couples. The shop owners contend that violates their First Amendment rights to free speech and free exercise of religion.

The DOJ has recently filed an amicus brief in favor of the cake shop owners. The DOJ argues that baking a cake for money is “expressive conduct” and “association” that raises First Amendment concerns, and a state’s interest in protecting gay residents is not strong enough to justify “compelling” this “creative process” for same-sex couples. While not an employment case, this position is clearly contrary to the EEOC’s position on these issues when the workplace is involved.

It seems that the EEOC and the DOJ will remain at odds on these issues in the coming months (and possibly years). It will be interesting to watch how this impacts courts’ analysis in these cases and whether any enforcement efforts or positions will change as a result.

Religious issues in the workplace are challenging both from a legal and practical standpoint. Managers and HR professionals want employees to feel accepted and included, and they don’t want anyone to feel targeted or mistreated based on their religious beliefs or practices. Problems can arise, however, where an employee’s religious practices interfere with the employee’s job or professional interactions. How do you accommodate the employee’s beliefs while also ensuring that the employee meets the job’s requirements? Continue Reading Handling An Employee Who Won’t Shake Hands For Religious Reasons

On Tuesday, April 4, 2017, the Seventh Circuit Court of Appeals became the first Federal Appellate Court to hold that Title VII of the Civil Rights Act of 1964 protects discrimination on the basis of sexual orientation.  While some states have already enacted laws protecting against that type of discrimination, and many employers have added such protections into company equal employment opportunity policies, this marks the first time sexual orientation has been deemed protected at this level under the federal Civil Rights Act. Continue Reading What Does The Landmark Ruling Declaring Sexual Orientation Discrimination Illegal Under Title VII Really Mean?

A recent federal Appellate Court decision offers employers greater flexibility and decision making authority in considering job reassignments for qualified disabled employees.  In EEOC v. St. Joseph’s Hospital, a case decided by the Eleventh Circuit Court of Appeals (which covers Georgia, Florida and Alabama), an employee sought a job reassignment as a reasonable accommodation under the Americans with Disabilities Act (ADA).  The employer allowed the employee thirty days to apply for vacant positions, but did not automatically grant her a new position.  Rather the employer required the employee to compete for a new position pursuant to its best qualified applicant hiring policy – she would be given the job only if she was the best qualified applicant for the position. Continue Reading Are Disabled Employees Entitled to Be Reassigned to an Open Position?

A nationwide restaurant chain is in a “sticky” situation, and not because of the barbeque sauce on its ribs.  Rather, it faces a trial in a lawsuit filed by the U.S. Equal Employment Opportunity Commission, alleging years of pervasive age discrimination in its hiring of hourly, “front of the house” employees.  The EEOC alleges  that the company failed to hire applicants over 40 for public, visible positions such as servers, hosts, and bartenders, and instead instructed managers to hire younger applicants for those positions at its hundreds of locations. Continue Reading Sticky Notes On Applications Create “Sticky” Problem in Hiring

The Eleventh Circuit Court of Appeals (which handles federal court appeals from Georgia, Florida and Alabama) recently issued a surprising and first of its kind decision holding that applicants may not bring a disparate impact claim under the Age Discrimination in Employment Act (“ADEA”).  The ADEA prohibits employers from intentionally discriminating against employees 40 or older due to their age.  Any such “disparate treatment” (another way of saying intentional discrimination) violates the ADEA.  But the ADEA is also usually understood to also prohibit unintentional discrimination on the basis of employees’ age (over 40), such as a rule or policy or practice that while non-discriminatory on its face has the real, if unintended, effect of discriminating against older workers.  This concept is known as “disparate impact” discrimination.  As the ADEA (and most employment discrimination laws) applies to both employees and applicants for employment, most assume that the disparate impact theory of discrimination also applies to applicants as it does to employees.  The Eleventh Circuit, however, said it does not. Continue Reading Can An Employer Legally (If Unintentionally) Screen Out Older Job Applicants?

Do you do business with the federal government?  If you do, you (hopefully!) know that keeping up with the rules and regulations of being a federal contractor are no easy task.  But we are here to help!

Lawyers at our firm, including HRLawMatters contributor Jim McCabe, have written an incredibly helpful article to help federal contractor employers comply with recent changes to their obligations. This article was recently published on the DirectEmployers Association website – and you can see it at this link hereContinue Reading Federal Contractors Must Read This!

If you are an HR professional, you surely worry about workplace violence.  Whether it is an “active shooter” at work or just an argument that turns physical between two employees, the concern about workplace violence and the harm it can cause — both to those directly involved and everyone else who works there — is quite real and undoubtedly scary.

I recently read an article from the Business Journal publications that I found useful:  “Preventing Workplace Violence: What to Listen For, Look For, Notice and Do.”  This article discusses issues surrounding workplace violence prevention and offers some “identifying signs and symptoms” that can be a precursor to violence.  Continue Reading Safely Preventing Workplace Violence