Operational leaders don’t always realize that harassment comes in many forms, so it’s worth taking a quick walk down the path of preventing non-sexual harassment. Why? Because this is all alive and well in courthouses throughout the nation, so you’ll want to be doubly sure that you’ve got a firm grasp on this critical employment law topic. Proactively addressing conduct that can give rise to non-sexual harassment related discriminatory complaints should be part of your organization’s leadership training and employment defense strategies going forward. First, some definitions:
Discrimination Treating an individual differently based on a protected characteristic or classification
Harassment Under Title VII: unwelcome or offensive conduct “which is severe or pervasive and creates a hostile work environment.” (Note, however, that states may differ from the federal definition by removing the “severe or pervasive” standard in order to make it easier to file and prove harassment claims.)
Second, understand that claims are often influenced by community movements and events happening at the time. For example, the Me-Too Movement (gender), Black Lives Matter (race), and COVID (retaliation and discrimination) may trigger lawsuits in their respective areas because awareness levels within and among those communities are high. Following is a short list of issues to grab your attention and raise awareness about how comments that continuously pepper the workplace could give rise to legal action that may be difficult to defend:
Discriminatory Comments Discrimination based on presumption (“I’m not Muslim but you assume that I am”) Discrimination by association (“You’ve made ongoing comments about my husband having multiple sclerosis”) Derogatory comments blaming COVID on certain minority groups or races Offensive statements about minority outreach activities in recruitment or about equality movements by specific minority groups (e.g., formalization of the new Juneteenth holiday) Note: Discrimination from people of the same race is possible
Age Age discrimination in furlough/layoff decisions, pandemic stay-at-home orders, or failure to return older workers to work Overall treatment of “high risk” employees (age and pregnancy) Replacing older employees with substantially younger employees, even if both groups are over forty. (Rule of Thumb: if there is greater than a 10-year age gap between the two individuals over forty, most plaintiffs’ attorneys will often pursue an age discrimination claim.) Mandatory retirement programs at a specific age Disparate impact analysis for reductions in force (which typically occur when companies select individuals for layoff without conducting a peer group analysis of those potentially impacted and reviewing that exercise without the help of outside counsel)
Immigration / Hiring Status Immigration / Citizenship status: refusal to consider valid paperwork as identified in the I-9 form “Green card only” hiring rules for immigrants English-only speaking rules, which may be permitted but must (1) be justified by business necessity; (2) narrowly tailored; and (3) made know to employees upfront (e.g., by tying the need to patient care and safety in hospitals, for example) Ancestry or National Origin status: Note that “Place of Origin” can be a country, a former country, or an ethnic group that is not a country (e.g., Kurdistan). Examples: calling an employee by his Caucasian name rather than his ethnic name; making statements like “Your country needs to be nuked” or other terrorist references Disparate impact of criminal background checks on decisions not to hire minority applicants
Religion Failure to accommodate work schedules (e.g., not working on Sabbath or past sundown) Failure to accommodate dress or grooming practices (for example, hijabs or turbans) Applying protections to less commonly known religions where a “sincerely held religious belief” may apply Note: Overall, religious accommodation and discrimination claims are difficult for employers to defend and are very fact specific. (1) Fact-specific analysis, (2) legitimate business need, and (3) whether the requested accommodation places and undue burden on the employer are the key considerations in religious discrimination claims.
Disability/Medical Condition Failure to modify someone’s job or accommodate work restrictions that allow them to continue working Failure to engage in the Americans with Disability Act’s (ADA) “interactive process” requirements whenever it comes to workplace restrictions, modified duty, or other accommodations related to medical disabilities—permanent or temporary.
Generally speaking, keep the following guidelines in mind:
When looking at the prospect of taking on a new case, plaintiffs’ attorneys must find a link to one of the protected classes afforded under federal law (race, color, religion, sex, national origin, age, disability, genetic information, pregnancy, sexual orientation, and gender identity) and/or the various protections available under state law
Documentation in the form of progressive discipline typically acts like garlic in keeping the vampires away: plaintiffs’ attorneys want cases where there is little if any documentation and he said—she said scenarios that can be misconstrued or otherwise cause confusion (which always works to their and their clients’ advantage)
It’s all about the written record: When a written record can stand on its own, plaintiffs’ lawyers often pass on the case. When the written record is inconsistent, contradictory, or nonexistent, plaintiffs’ attorneys will be much more likely to take on a new case.
The way I’ve always looked at it, I don’t mind getting sued—that’s simply the cost of doing business in corporate America from time to time. However, what’s critically important to me is that I get sued on my terms—not theirs. When the documentation is tight and consistent and when multiple witnesses can attest to how fairly the individual was treated, then I’m on solid ground to defend a lawsuit that comes my way. Always partner with HR when it comes to employee misconduct challenges and strive to conduct all your employee relations matters and people practices in a fair and ethical manner, which enhances your organizational culture and your reputation as a leader, while minimizing the downside risk of employment litigation and liability down the road.
Paul Falcone is the former CHRO of Nickelodeon, a bestselling author with HarperCollins Leadership and the American Management Association, a columnist for the Society for Human Resource Management, and now a consultant offering services in the areas of keynote speaking, management training, executive coaching, and HR advisory support.