|
|
Anti Discrimination and Harassment Training
Employers who fail to train their employees on how to prevent and adress
discrimination
and harassment in the workplace face the possibility of being
found liable to pay their
employees very large sums of money. Employers
who invest in the training benefit by
decreasing their exposure to liability
and damages and by improving the quality of their
employment environment.
To avoid liability for harassment claims, employers should
exercise reasonable care to
prevent harassment before it happens. This
means employers should establish an
anti-harassment policy that is clear,
prohibits harassment, prohibits retaliation, and is
effective in its
complaint process, investigation process, corrective action. More
importantly, however, employers should effectively disseminate the information
to
employees.
Similarly, employers too often face liability for employment
discrimination because
management personnel are inadequately trained on
practices such as hiring, providing
discipline, and terminating employment.
Again, employers can realize substantial
benefits both in terms of reduced
liability exposure and improved environment by
providing adequate training
to managers on issues related to equal employment
opportunities.
|
|
Gregory A. Gordillo
The EEO Attorney
Employment Discrimination
Unlawful employment discrimination happens when employment decisions are affected by factors such as age, disability, national origin, race, religion, or sex. The employment action may result in disparate treatment of an employee or the action may be the result of a policy that has a disparate impact on the employee. 'Disparate treatment' and 'disparate impact' are two different kinds of discrimination. Disparate treatment means that the employer intends to treat one employee differently than another based upon a specific, prohibited factor such as age discrimination, race discrimination, or sex discrimination. For example, it happens when one employee is rejected for a job because the manager thinks older workers are less productive than younger workers. Disparate treatment discrimination is the most common type of discrimination.
Disparate impact discrimination is much more rare. It
happens when an employer uses a practice that is fair in form but
discriminatory in operation. In other words, an employment
practice that operates to exclude a protected class of employees
cannot be shown to be related to job performance. For example, a minimum
height and weight requirement may disproportionately screen out women and if
the reasons for the requirements are not justified by business necessity, the
employer is liable for sex discrimination. Similar policies can result in
all kinds of discrimination including age discrimination, disability
discrimination, nationality discrimination, and race discrimination.
Not all discrimination is against the law. Employers are
allowed to make business judgments based on factors other than those
specifically prohibited. An employee who is fired for tardiness has been
discriminated against when compared to another, on-time employee who was
not fired. But this discrimination is not against the law. Employers
properly and necessarily discriminate every day. Informed employers and
employees know the difference between lawful and ulawful discrimination.
Age, disability, nationality, race, religion, and sex
discrimination, is not allowed. Whether an employer intends to
discriminate through disparate treatment or disparate impact, employees are
entitled to compensation for the adverse consequences of unlawful discrimination
but only for unlawful discrimination.
Harassment and Hostile Environment
To prove unlawful harassment claim, an employee must satisfy five criteria:
(1) the employee is a member of a protected class; (2) the harassment was
unwelcomed; (3) the harassment was based on a protected characteristic;
(4) the harassment was sufficiently severe or pervasive to create a hostile or
abusive working environment; and (5) A basis for employer liability exists.
If an employee cannot prove any one of these elements, the employee cannot prove
harassment that is against the law.
But when an employee can prove each element of a harassment
claim, the employer faces serious and substantial liability. When the harassment
takes the form of a tangible employment action, the employer has few defenses
available. Tangible employment actions are significant changes in
employment status. Examples include a discharge or demotion or a significant
change in compensation or benefits. If the harassment is the result of conduct
that was not a tangible employment action, an employer is still likely to be
found responsibile unless: (a) the employer exercised reasonable care to prevent
and correct promptly any harassing behavior, and (b) that the employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer.
This law is the reason why creating and implementing
anti-harassment policies is so important for employers and why promptly
reporting harassment to employers with such policies is so important to
employees.
Retaliation
The law protects employees against retaliation from employers for certain
activities by the employees. Some of these activities include, making a
discrimination or harassment complaint, filing a worker's compensation claim,
taking medical leave, complaining that overtime premiums are owed for work
performed or that wages are due for hours worked. In each case, the
employee must be acting in good faith. But if the employee is acting in
good faith, the employer cannot retaliate. And even if the employee has
acted mistakenly, the employer still cannot retaliate if the employee was acting
in good faith.
To prove retaliation, an employee usually must show that (1) the
employee engaged in protected activity; (2) the employee was the subject of
adverse employment action; and (3) a causal link existed between the protected
activity and the adverse action.
These claims are among the most dangerous for employers to defend.
Often, timing is a critical issue in proving retaliation. When an employee
engages in a protected activity and suddenly afterwards experiences an adverse
employment action, a retaliation case will often succeed for the employee.
The employee who succeeds in proving a retaliation claim will often also prevail
on a claim for punnitive damages. Every employer who is liable for
punitive damages risks its continued existence. When astronomical jury
verdicts are reported in employment cases, the usual factor most contributing to
the high amount is the punitive damages.
Wrongful Discharge
In Ohio, employees are presumed to be employed “at-will.” This means that
unless evidence exists to show that the employee and the employer agreed that
the employment would last for some specific, limited duration, the employment
relationship can be terminated for ay reason or no reason at any time by either
the employee or the employer. Over time, however, Ohio courts have recognized
certain exceptions to the rule that employment can be terminated at any time for
any reason. One of those exceptions is that an employer cannot discharge an
employee for a reason that is contrary to Ohio public policy.
Some examples of public policies that cannot be violated by
employers when firing employees are policies against retaliation for an employee's: consulting with an attorney, or receiving unemployment
compensation benefits, or giving truthful testimony in a judicial proceeding, or reporting insurance fraud schemes, or reporting crimes.
To prove a case for wrongful discharge in violation of
public policy, an employee must satisfy four elements. The employee must prove
that (1) a clear public policy exists; (2) the employer’s firing the employee
jeopardizes the public policy; (3) the employer fired the employee
because of the conduct related to the public policy; and (4) the employer had no
legitimate business justification for firing the employee.
Whistleblowers
Whistleblowers are people who report wrongdoing by their employers. Many
different laws protect whistleblowers from retaliation by their employers.
Which law applies will often be determined by the activity that the
whistleblower is reporting. For example, an employee reporting possible
environmental crimes by an employer is protected by certain environmental
protection laws. Another federal law protects people who "blow the whistle" on
companies that overcharge the federal government for services or products
provided to the federal government. Dozens of laws exist to protect particular
different whistleblowing activities. These are just two examples.
Ohio also has a more general law that protects whistleblowers.
Ohio Revised Code Section 4113.52 protects an employee who properly reports
their reasonable belief that their employer is committing "a criminal offense
that is likely to cause an imminent risk of physical harm to persons or a hazard
to public health or safety or is a felony." The employee, however, must make
the report in good faith. The employee does not have to be right about the
allegation, but some factual basis for the allegation must exist.
The statute also has strict requirements regarding how the
employee must report their concerns. An employee seeking whistleblower
protection must prove that: (1) the employee provided the required oral
notification to the employee's supervisor or other responsible officer of the
employer, (2) the employee filed a written report with the supervisor or other
responsible officer, (3) the employer failed to correct the violation or to make
a reasonable and good faith effort to correct the violation. Furthermore, the
statute requires that an employee must prove that after the employer failed to
take steps to correct the violation, the employee filed "a written report that
provides sufficient detail to identify and describe the violation with the
proper prosecuting authority or other appropriate official or agency with
regulatory authority over the employer and the industry, trade or business in
which the employer is engaged."
Complying with Ohio's statute is difficult for most employees.
This means that most claims brought under the statute fail. But because
alternative protections usually exist, employees should seek competent counsel
when they feel that they have been retaliated against for reporting employer
wrongdoing. Likewise, Ohio employers accused of whistleblower retaliation
should retain counsel experienced and familiar with the particular whistlrblower
laws at issue because many times defenses will depend on technical application
of statutes that require in depth knowledge of what the statute requires.
Family Medical Leave Act
The Family Medical Leave Act requires larger employers to provide all covered employees
with up to 12 weeks time off per year for medical reasons. Not all employers
are required to provide the leave. And not all employees are entitled to the
leave. The only employers who must provide the leave are those that have 50 or
more employees within a 75 mile radius of the worksite where the employee seeking
leave works. The employee is not entitled to the leave until the employee has
worked for that employer for at least 12 months and at least 1,250 hours during
the twelve months before taking leave.
Medical leave is only protected under this law if the leave
is for a "serious health condition." Although definitions of this phrase are
provided in the statute enacted by congress and the regulations issued by the
United States Department of Labor, the term is often the subject of litigation
and court decisions to determine whether a particular health condition is
"serious." But when an employee covered under the statute suffers from a serious
health condition, or the spouse, parent, or child of the employee suffers from a
serious health condition, the employee is entitled to take protected medical
leave.
Under the FMLA, employers have many responsibilities and
obligations to the their employees when administering the medical leave. While
an employee must notify an employer that the employee needs time off for health
reasons, the employee's obligations are few unless clearly established by the
employer before the employee's need for medical leave arises and consistently
followed after the need arises for each employee taking leave. As a result,
employers should routinely confer with legal counsel to confirm that their
family and medical leave act policies conform with the law. And employees
should seek legal counsel concerning their rights if the employee has been:
denied the right to take leave; or
retaliated against for seeking or taking medical leave; or
confronted with conduct by an employer designed to restrict the employee's
ability to take medical leave.
Handbook Reviews
Handbooks will only serve their purpose if the employer keeps them current.
To view a recent powerpoint slide presentation that addressed handbook and
personnel policies, click here. Four common guideposts to consider when deciding whether a handbook needs
updated are:
Does Your Manual Really Work? Consider whether your existing
policies have been followed. For those policies not being followed, determine
why. Do your managers need a reminder about those policies, or are the policies
not workable? Handbooks often contain policies that seemed like a good idea when
written but later proved to be impractical. If your handbook has one policy like
that, the time has come for your handbook to be updated.
Has Your Company Changed? When your company's business or
structure changes, company policies usually require changes too. For example,
has the company grown to include a human resources director or department? Has
your company encountered new safety risks because of a new product or
manufacturing process? Your employment manual should address and reflect those
changes.
Has The Law Changed? Have new laws concerning your employees been
introduced since the latest handbook revision? For example, the
Sarbanes-Oxley Act of 2002 created new requirements for publicly traded employers
to protect employee whistleblowers. If your company is publicly traded, your
employment manual should therefore include all the requisite policies to protect
whistleblowers.
Have Your Policies Changed With The Times? No analysis would be
complete without reflection on the recent changes in the workplace and the world.
As your industry evolves and politics change, so does your workplace. The
workplace is constantly affected by events outside your primary business. Your
policies should reflect these influences.
|
