Words Matter: A Look at Workplace Harassment and Discrimination
"You mean I can't say that?"
"She's just too sensitive!"
"That's not what I meant."
It's likely that at one time or another you, or someone you know, has heard these words from a coworker or supervisor. What you may not have realized, however, is that the speaker could be breaking the law.
The Civil Rights Act, Title VII, was passed in 1964 and is a part of our history; however, harassment and discrimination still happen too frequently today. There are still employers who do not communicate their harassment policies, and even worse, fail to train supervisors on how to handle harassment when it occurs.
Unfortunately, cases are regularly brought by employees everywhere, ending in costly, damaging lawsuits that could have been avoided with a policy and training for employees and supervisors.
Employers should be encouraged to develop and adhere to a comprehensive anti-harassment and antidiscrimination policy that covers all types of harassment, not just sexual harassment. Policy and training should provide definitions and procedures to follow in the event of potential harassment. An effective policy should provide for alternative persons to report harassment, especially in the event of the harasser being the supervisor. Supervisors must be trained in taking complaints and managing the complaint process. Procedures may vary from one organization to another, however, the procedure must be documented and communicated consistently throughout any organization.
Unlawful harassment is a form of discrimination that violates the Civil Rights Act and other federal and state laws. The Equal Employment Opportunity Commission (EEOC) is the federal agency that regulates workplace discrimination while the Commission for Human Rights enforces state anti-discrimination law in New Hampshire.
New Hampshire laws protect employees from illegal harassment and discrimination. RSA 354-A:6 provides "the opportunity for employment without discrimination a Civil Right." The law states: "The opportunity to obtain employment without discrimination because of age, sex, race, creed, color, marital status, physical or mental disability or national origin is hereby recognized and declared to be a civil right. In addition, no person shall be denied the benefits of the rights afforded by this section on account of that person's sexual orientation."
Under federal law, companies with 15 or more employees are covered by Title VII, which prohibits discrimination in employment. They are also covered by the Americans with Disabilities Act, which prohibits discrimination on the basis of disability, and the Genetic Information Nondiscrimination Act, which prohibits discrimination based on genetic information. Companies with 20 or more employees are subject to the Age Discrimination in Employment Act (ADEA), the federal law that prohibits discrimination against employees 40 years or older. The New Hampshire statute applies to all employees over the age of 18. Companies with four or more employees must comply with the employment discrimination provisions of the Immigration Reform and Control Act, which prohibits discrimination on the basis of citizenship status. And all companies of any size must pay men and women equally for doing equal work, by virtue of the Equal Pay Act. Additionally, New Hampshire companies with six or more employees are subject to the state's anti-discrimination law.
We must also remember that Pregnancy Discrimination is prohibited by law in the state. NH RSA 354-A:7 VI provides female employees the ability to take leave of absence for the period of temporary physical disability resulting from pregnancy, childbirth or related medical conditions.
When the employee is physically able to return to work, her original job or a comparable position shall be made available to her by the employer unless business necessity makes this impossible or unreasonable.
What constitutes illegal harassment?
Unlawful harassment could include unwelcome verbal or physical conduct based on race, color, religion, sex, national origin, age (remember: New Hampshire protection is over the age of 18), disability (mental or physical), sexual orientation, or retaliation when:
- The conduct is sufficiently severe or pervasive to create a hostile work environment; or
- A supervisor's harassing conduct results in a tangible change in an employee's employment status or benefits (for example, demotion, termination, failure to promote, etc.).
The hostile work environment can occur when the conduct unreasonably interferes with an individual's ability to do his or her job or creates an intimidating, hostile or offensive work environment. A hostile environment may also be created when the conduct affects someone that is not the direct recipient or the conduct is not directed at that individual.
There are several sexual harassment or hostile environment examples that should be mentioned in the policy and communicated to employees during training in order to demonstrate the wide array of actions that may be causing the harassment or discrimination including but not limited to:
- Leering, i.e., staring in a sexually suggestive manner
- Making offensive remarks about looks, clothing, body parts
- Touching in a way that may make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another's body
- Telling sexual or lewd jokes, hanging sexual posters, making sexual gestures, etc.
- Sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images
In the area of technology, there is an increase in "online" forms of harassment that employers must be aware of. But the upside is that technology can make it easier to document and prove harassment. In a recent report by Steven Foster, president and C.E.O. of Business Controls, a Denver-based company that investigates harassment claims for employers, Foster says he is astonished by what people will say over company email or send over employer-paid cellphones.
Sexual harassment is not only devastating to the victims, but also to businesses. An employer that fails to train employees and supervisors on how to deal with such conduct can find itself in legal situations that can be costly, in terms of money, morale, turnover, and reputation.
In 2012, the top five sexual harassment lawsuits nationally cost their respective organizations more than $1 million each; and the largest judgment cost the defendant employer a whopping $168 million. That type of settlement is not typical in New Hampshire, but the state is not immune to such lawsuits.
Public employers must do due diligence in training employees. Updated, effective policies, fully enforced, are the responsibility of every employer. In addition, every employer must ensure fair, thorough investigations when harassment is reported.
LGC Risk Pool Services, Property Liability Trust and HealthTrust provide workplace harassment prevention seminars for member groups. For more information, contact Risk Pool Services at 603.224.7447 or 800.852.3358. Wynette DeGroot is a health and safety advisor for LGC Property-Liability Trust. She can be reached at 603.320.1311 or by email.
This article is intended to be merely informational and not intended to be used as the basis for any compliance with federal, state or local laws, regulation or rules. Nor is it intended to substitute for the advice of legal counsel.