As we learned, discrimination in any aspect of the employment relationship based on age, disability, national origin, race, religion, marital status, military status, sexual orientation or being a whistleblower is legally prohibited.
One type of illegal discrimination is sexual harassment, which takes two forms:
- Quid pro quo Harassment. Existence and elements include (a) Employer conditions favorable employment decisions (promotion or pay raise, for example) or threatens unfavorable employment decisions (demotion or no pay raise, for example) upon submission to unwelcome sexual advances and (b) Subordinate either submits to sexual conduct or refuses to submit and Employer takes tangible adverse employment action.
- Hostile Workplace Harassment. Existence and elements include (a) unwelcome, sexually-charged, verbal or physical workplace behavior or conduct that demeans or shows hostility or aversion towards a person or their relatives, friends or associates because of their gender or sexual orientation or (b) behavior or conduct that has the purpose or effect of creating a hostile, intimidating work environment, unreasonably interfering with work performance or adversely affecting employment opportunities.
Employers have a legal duty to take "immediate and appropriate corrective action" in response to a sexual harassment complaint. Retaliation is not to be tolerated and is strictly prohibited by law. Retaliation is defined to include any conduct that "tends to deter" someone from reporting.
Employers are "strictly liable" when a "tangible adverse action" occurs in connection with sexual harassment. Persons protected by anti-discrimination laws include:
- Individual who complained
- Any individual providing relevant information in an investigation
- Anyone believed or suspected to have made a complaint
Anyone found to have engaged in inappropriate conduct (harassment or retaliation) may be subject to discipline, which can include termination.
Employers may not be liable if (1) they exercised reasonable care to prevent and correct promptly any harassing behavior or (2) the employee failed to reasonably take advantage of the Employer's preventative or corrective measures or to otherwise prevent harm that could have been avoided.
- Create and maintain a workplace that is free from harassment
- Educate employees on their responsibilities and review the complaint process with them
- Be accessible to employees
- Respond immediately to complaints or observed harassment and retaliation
- Be "pro-active;" establish and use a system and procedures
Examples of a Hostile Work Environment.
- Verbal actions such as jokes, teasing, name-calling or comments that stereotype a protected class
- Physical actions such as hanging or showing offensive pictures, physical violence or hostility directed towards a protected class, gesturing or encroachment onto an employee's person or physical space
- Whistling or staring at someone, giving unwanted personal gifts or hanging around a person