“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

By Bryan A. Chapman, Esquire

“Papering” an employee’s personnel file: Dr. Jekyll becomes Mr. Hyde

Employers are advised to document the job performance of their employees. The documentation of job performance is particularly important when an employer is accusing an employee of poor job performance.  Write-ups and negative job performance evaluations can justify adverse actions, such as, denial of promotion, demotion, or termination.

However, unjustified write-ups and negative job performance evaluations may be evidence of discrimination and retaliation.  A careful examination of the personnel file portrays an employee who goes from being Dr. Jekyll to Mr. Hyde: a good employee suddenly becomes a bad employee.  This can raise suspicion and expose an employer to liability.

“Papering” occurs when an employer deliberately packs an employee’s personnel file with unjustified write-ups and negative job performance evaluations in order to justify an adverse action.  For instance, an employer can “paper” an employee’s personnel file by the following methods:

  • An employer may hold the employee to a higher standard than “similarly situated employees”.
  • An employer may scrutinize an employee.
  • An employer may singled out the employee for criticism or disciplinary action.
  • An employer may create a hostile work environment that interferes with the employee’s ability to perform their job.
  • An employer may solicit criticism of the employee from their co-workers and supervisors.
  • An employer may incite the employee’s co-workers and supervisors against them.
  • An employer may deliberately give the employee false write-ups and negative job performance evaluations.

Employers can use “papering” to cover-up discrimination and retaliation. Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997) (“…he received much lower performance evaluations than he had received before filing his employment discrimination charge…  There was also evidence that Nash Finch had ‘papered’ his personnel file with negative reports, including two written reprimands.”); Etefia v. East Baltimore Cmty. Corp., 2 F.Supp. 751 (D. Md. 1998) (the court determined that the issue of whether documentation of the employee’s job difficulties was part of a plan to terminate him based on discrimination precluded summary judgment.)

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How to Respond to Microaggressions

Should you let that comment slide, or address it head on? Is it more harm than it’s worth? We can help.

Credit…Derek Abella

By Hahna Yoon

March 3, 2020

For many of us, microaggressions are so commonplace that it seems impossible to tackle them one at a time. Psychologists often compare them to death by a thousand cuts.

The metaphor is both the subtitle to a paper that Kevin Nadal, professor of psychology at John Jay College, wrote about the impact of microaggressions on L.G.B.T.Q. youth, and the title of another paper on the health implications of black respectability politics by Hedwig Lee, professor of sociology at Washington University in St. Louis, and Margaret Takako Hicken, research assistant professor at the University of Michigan. The phrase is commonly found in additional studies on the topic.

I felt my thousandth cut a few Novembers ago standing outside a bar as my friend’s boyfriend explained to me the concept of American Thanksgiving. From the time in fourth grade when my teacher made me read the part of “slanted-eyed child” in a play to every time a stranger in the online dating world told me he “loves Asian women,” I have been pressed with the dilemma of how I should react to these seemingly small lacerations. Should I respond? Is it worth it?

When I tell people that I am writing about microaggressions, most — even some of my closest friends who are women of color — ask me why. It’s tempting to ignore microaggressions, considering blatant, obvious discrimination is still a real problem, but the buildup of these “everyday slights” has consequences on a victim’s mental and physical health that cannot be overlooked. The normalization of microaggressions is antithetical to a well-rounded society with equal opportunities for marginalized individuals.

So many of us ask the same questions: Was that really a microaggression? Is this worth tackling? What should I say and how should I cope? Or worse, we’ve convinced ourselves that the questions are not even worth asking. Dancing in circles myself, I weigh in with experts who have witnessed microaggressive acts and had them share their insights based on years of research and data.

Originally coined in the 1970s by Chester M. Pierce, a Harvard psychiatrist, today’s definition of a microaggression can be credited to Derald Wing Sue, a professor of counseling psychology at Columbia University. Since 2007, he has written several books on microaggressions, including “Microaggressions in Everyday Life: Race, Gender, and Sexual Orientation.” In it, Dr. Sue writes that microaggressions are the everyday slights, indignities, put-downs and insults that members of marginalized groups experience in their day-to-day interactions with individuals who are often unaware that they have engaged in an offensive or demeaning way.

Microaggressions are often discussed in a racial context, but anyone in a marginalized group — be it as a result of their gender, sexual orientation, disability or religion — can experience one.

Microaggressions can be as overt as watching a person of color in a store for possible theft and as subtle as discriminatory comments disguised as compliments.

The first step to addressing a microaggression is to recognize that one has occurred and dissect what message it may be sending, Dr. Sue said. To question where someone is from, for instance, may seem fairly innocuous but implicitly delivers the message that you are an outsider in your own land: “You are not a true American.” Subtle actions, like a white person’s clutching a purse closer as a darker-skinned person approaches, are nonverbal assumptions of criminality and examples of microaggressions.

While there has been debate about the definition of microaggressions and how they should be addressed, Dr. Sue says their existence is impossible to dispute. “When I talk about the concept of microaggressions to a large audience of people of color and women, I’m not telling them anything new, but it provides them with a language to describe the experiences and the realization that they’re not crazy,” he said.‘You Don’t Want to Make It a Big Deal, but It Is’A play at Harvard explored microaggressions and their impact.VIDEOMicroaggressions: Comments That Sting

Discrimination — no matter how subtle — has consequences. In 2017, the Center for Health Journalism explained that racism and microaggressions lead to worse health, and pointed out that discrimination can negatively influence everything from a target person’s eating habits to his or her trust in their physician, and trigger symptoms of trauma. A 2014 study of 405 young adults of color even found that experiencing microaggressions can lead to suicidal thoughts.

For many members of marginalized groups, it is easy to believe that simply growing a thick skin will provide protection from these experiences. However, Dr. Nadal argues that the consequences of microaggressions are real, whether or not you believe yourself to be numb to them.

“Experiencing the spectrum of racism — from microaggressions to systemic oppression to hate violence, may negatively affect people whether someone is aware of it at all,” Dr. Nadal said. “If the person who committed the microaggression is in your life, it can always be worth bringing up. In the same way that a family member or friend may hurt you and it takes years to recover, the impact of a microaggression can be long-lasting too.”

When discussing microaggressions, people from privileged backgrounds often say marginalized individuals are simply overreacting. Dr. Alisia G.T.T. Tran, an associate professor of counseling and counseling psychology at Arizona State University, disagrees. She says that most people actually ignore and shake off a lot of microaggressions. “They have no choice, they’re so common, and you can’t fight every battle — but these things can stay with you or build up,” she said. She and many other psychologists say that responding to a microaggression can be empowering, but with so many battles, how do you decide which to fight?

To help, Dr. Nadal developed a tool kit called the Guide to Responding to Microaggressions. It lists five questions to ask yourself when weighing the consequences of responding to a microaggression.

  • If I respond, could my physical safety be in danger?
  • If I respond, will the person become defensive and will this lead to an argument?
  • If I respond, how will this affect my relationship with this person (e.g., co-worker, family member, etc.)
  • If I don’t respond, will I regret not saying something?
  • If I don’t respond, does that convey that I accept the behavior or statement?

Diane Goodman, a social justice and diversity consultant, says the process is unfair, but having to decide whether or not to take action is inevitable in today’s society. “The emotional labor should not have to fall on people from marginalized groups. In the real world, people are confronted with microaggressions and people need to decide what they want to do.”

Before moving forward with confronting the microaggression, she recommends you assess the goals of your response: Do you simply want to be heard? Or are you more interested in educating the other person and letting them know they did something wrong?

Even once you have decided that you can respond to a microaggression, knowing what to say or how to behave can be nerve-racking. In his research on disarming microaggressions, Dr. Sue uses the term “microintervention” to describe the process of confronting a microaggression. “Unless adequately armed with strategies, microaggressions may occur so quickly they are oftentimes over before a counteracting response can be made,” he said.

While your response will vary by situation, context and relationship, Dr. Goodman recommends memorizing these three tactics from her list of prepared statements.

Ask for more clarification: “Could you say more about what you mean by that?” “How have you come to think that?”

Separate intent from impact: “I know you didn’t realize this, but when you __________ (comment/behavior), it was hurtful/offensive because___________. Instead you could___________ (different language or behavior.)”

Share your own process: “I noticed that you ___________ (comment/behavior). I used to do/say that too, but then I learned____________.”

One principle underlying these statements is helping the aggressor understand she or he is not under attack for their comment. “If we want people to hear what we’re saying and potentially change their behavior, we have to think about things that will not immediately make them defensive,” Dr. Goodman said.

It happens all the time — a friend of yours likes a racist comment on Facebook or a co-worker shares a meme with misogynist undertones. How can you respond when communicating online seems so visible and permanent?

According to research by Robert Eschmann, an assistant professor at Boston University’s School of Social Work, the visibility of microaggressions also means you can have like-minded allies step in to respond with you. “When you experience a microaggression when you’re by yourself,” Dr. Eschmann said, “there is no one else that can validate that experience for you. When you’re online, you can have lots of eyes on it and more people that can call it out and say that’s wrong.”

Another tactic Dr. Nadal suggests is to send links to articles that identify the microaggression. “It can be exhausting to have to explain microaggressions each time you encounter them; however, copying and pasting a link may be a simple tactic to use.” After you send the link and call out the microaggression, it is also important to identify when the person you are speaking to is actually open to a conversation.

Dr. Sue reminds us that so much of what happens online are monologues and not dialogues. “To me, responding to microaggressions online are a waste of time, because I don’t think — unless I have time to interact with the person on a personal level — I will be able to effect any change,” he said. Knowing when to step away and shut off the screen, especially when you sense a dead end, is crucial to self-care, he adds.

Learning to draw boundaries and find support among allies is one of the most important steps in dealing with microaggressions.

For those looking for an immersive experience, one Psychology Today article suggests a process of radical healing — developing pride in your community, sharing stories with people from it and taking action to make changes on a local and political level, reflecting on the challenges of your ancestors and practicing self-care by staying healthy — physically and spiritually.

Self-care, however, can be as simple as having a few friends to discuss common experiences with. Shardé M. Davis, a professor of communication at the University of Connecticut, has studied supportive communication about microaggressions among groups of black women and finds that talking can facilitate the coping process. Although Dr. Davis’s study was limited to black women, she believes the spirit of what that represents could easily translate to other groups of people.

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Trump’s xenophobic travel ban punishes Americans above all

The president’s recent anti-immigration move is breaking up American families.

By The Editorial Board

Boston Globe

February 17, 2020

People hold signs showing their support of ending a travel ban on Muslim-majority countries at a news conference outside of the US Capitol last month. Senate and House Democrats are calling for the passage of the NO BAN Act to end President Trump's travel bans, which they call discriminatory.
People hold signs showing their support of ending a travel ban on Muslim-majority countries at a news conference outside of the US Capitol last month. Senate and House Democrats are calling for the passage of the NO BAN Act to end President Trump’s travel bans, which they call discriminatory. SARAH SILBIGER/GETTY

A rational president, making decisions untainted by racial bias, would know that Nigerians are among the most successful and highly educated immigrant groups in America: 61 percent hold at least a bachelor’s degree. More than 1 in 3 Nigerian immigrants work in the US health care industry; compared to the general population, they’re also more likely to work in science, technology, and engineering fields.

Then there’s President Trump. Shown statistics about Nigerian immigration in the United States, he lamented in 2017 that once Nigerians were in the United States, they would never “go back to their huts” in Africa.

That ignorant, bigoted comment tells you everything you need to know about the administration’s latest immigration restrictions, which primarily affect African nationals and their US-based families. The administration has tried to rationalize the policy as a national-security move. But they’re not kidding anyone, and it shows why Congress needs to limit the president’s ability to issue sweeping bans affecting entire countries.Get Today in Opinion in your inboxGlobe Opinion’s must-reads, delivered to you every Sunday-Friday.Sign Up

As of Feb. 21, the president instructed the US Department of Homeland Security to bar citizens of Myanmar, Eritrea, Kyrgyzstan, and Nigeria, which has the largest economy in Africa, from seeking permanent admission to the United States. The order also bans citizens of Sudan and Tanzania from participating in the diversity lottery program, which issues green cards to as many as 50,000 foreigners annually. In a press release, DHS insisted that the new “restrictions do not reflect animus or bias against any particular country, region, ethnicity, race, or religion”; instead, they are the “result of these countries’ unwillingness or inability to adhere to our identity management, information sharing, national security, and public safety assessment criteria.”

It is a dramatic expansion of Trump’s previous attempts to bar Muslims and other foreigners. Yet this time, the main victims are American citizens. Unlike the previous travel bans, this new restriction does not apply to refugees, students, tourists, or visitors coming under temporary visas. But it will prevent nearly all parents, children, wives, husbands, and other eligible relatives of US citizens from applying for a green card. The new travel ban will hurt more than 336,000 naturalized US citizens, who won’t be able to reunite with relatives living abroad.

Under the new rule, a tourist from Nigeria can still visit, but a Nigerian seeking to join her husband who is already here will be barred from moving here. As immigration experts have pointed out, the “underwear bomber” — the only Nigerian individual charged with terrorism in the United States — came here on a tourist visa and thus would have been allowed in under the new travel restriction. Others have noted that, in the last two decades, no Americans have been killed on US soil by terrorist extremists from the six countries included in Trump’s new travel ban.

It’s hard to take the Trump administration’s argument for the new ban seriously. If one is to believe that DHS is targeting these countries for their inability to provide certain safeguards when issuing passports or for failing to share information on certain individuals, presumably that would apply to tourists or other short-term travelers as well. Why ban only the grandfather seeking to move to be with his US-based family?

Congress can and should do something, of course. The NO BAN Act — or the National Origin-Based Antidiscrimination for Nonimmigrants Act — was filed last year by US Representative Judy Chu of California. It’s a fair and sensible policy solution that inserts fundamental checks and balances into the president’s executive power to indefinitely restrict or bar foreigners from coming to the United States. The bill would amend the section of the Immigrant and Nationality Act that grants the president such broad discretion and, aside from repealing all Trump’s travel ban orders, it would require that all future presidential travel limits be reported to Congress and the public, and that they be supported by credible evidence.

Taken together, all Trump’s travel bans are closing the doors of America on a half-billion foreigners and roughly a quarter of Africa’s population. Let’s not forget Trump’s own words when referring to immigrants from Africa. In a now-infamous remark directed at immigrants from Africa and Central America, he whined: “Why are we having all these people from shithole countries come here?”

It should be self-evident by now that Trump’s new travel ban is not grounded on real national security concerns. Instead, it’s about selectively deciding who should be an American.


Editorials represent the views of the Boston Globe Editorial Board.

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Trump is deciding who is American’: how the new travel ban is tearing families apart

Trump travel ban

As six countries are added to the list of restrictions, Nigerian and Eritreans in the US say the ban is devastating their lives

Source: The Guardian

Sam Levin in Los Angeles @SamTLevin Email

Sun 16 Feb 2020 

It started out as a joyous day for Olumide. On 31 January, the 32-year-old Nigerian American learned in an email that the US was finally processing the visa applications of his wife and daughter in Nigeria.

Hours later, Donald Trump shattered their celebration, announcing that he was adding six countries to the travel ban, including Nigeria. The decision cuts off pathways to permanent US residency for Nigerians, throwing Olumide’s case into limbo at the final stage of the process. It leaves his wife and and 11-year-old girl stuck across an ocean with little hope of making it to the US.

“This is inhuman,” said Olumide, a systems analyst and US military veteran who served in Afghanistan and lives in Washington DC. He asked to use his middle name out of fear he might jeopardize his case. “As a soldier, I understand the need to protect the country. But to completely shut the doors … it’s just plain wrong.”

Millions of Africans now banned: ‘We are not criminals’

Trump’s January order builds on the 2017 travel ban that has continued to target five Muslim-majority countries, and significantly restricts permanent residency for nationals from Eritrea, Kyrgyzstan, Nigeria and Myanmar. It also blocks people from Tanzania and Sudan from obtaining green cards through the “diversity visa” lottery.

Just like the 2017 restrictions, it blocks permanent immigration from the targeted countries, making limited exceptions if applicants prove that denials would cause “undue hardship” and that granting them visas would support “national interest”.

The original ban already resulted in denied visas for more than 42,000 people, the majority from Iran. The addition of the new countries has doubled the number of Muslims targeted across the globe to roughly 320 million, advocates estimate. Roughly one-quarter of all Africans are now affected.

The restrictions now apply to 13 countries, including Nigeria, home to Africa’s largest population and economy. It cuts off countries where some are fleeing violence. Some estimate the new ban, which goes into effect on 21 February, could hinder more than 12,000 immigrants seeking to resettle in the US and reunite with family in the next year.

The restrictions are a signature component of Trump’s aggressive anti-immigrant agenda, which has included curbs on legal migration, a destruction of the American asylum system, an all-time low cap on refugees, expanded detention and mass deportations.

“Trump started out by scapegoating Muslims in 2017,” said Javeria Jamil, attorney with Asian Americans Advancing Justice’s Asian Law Caucus, who has been fielding calls from families affected by the new ban. “Now, it’s not just the Muslim ban. It has turned into an African ban.”

The latest major Trump resignations and firings

 The Trump administration has claimed that the ban, which blindsided some diplomats, is a national security measure, and that the added countries failed to meet US security and information-sharing standards.

But immigrant rights groups said the policy is a political maneuver amid Trump’s re-election campaign – and one that will have profound consequences.

“People are in turmoil,” said Audu Kadiri, a 43-year-old community organizer who left Nigeria in 2014. He had planned to bring his mother to the US, but the ban may make that impossible. The activist, who now lives in the Bronx, hasn’t yet told his mother about Trump’s order, because he doesn’t know how to break the news. “There is so much collateral damage, it’s hard to quantify.”

In Nigeria, Kadiri was an LGBTQ+ rights advocate who worked on HIV prevention and other human rights issues. He was forced to flee due to his activism and sought asylum in the US. It’s now unsafe for him to return to Nigeria, which is why he wants his 68-year-old mother to come to the US.

He hasn’t seen her since 2014 and, if Trump is re-elected, he fears it will be at least another five years before they reunite. She’ll probably miss the birth of his third child.

“Nigerians have contributed to the development of this country, like every immigrant community,” he said. “We are not criminals.”

Torn apart, with dwindling options

Before the January announcement, the Trump administration had already clamped down on travel from Africa, including hikes in visa fees, and new obstacles and increased denials for Nigerians seeking approval for short-term visits. The US further suspended visitor visas from Eritrea in 2017.

That means families have been fighting for years to use the dwindling avenues available to them to reunite, and for those who have invested significant time and money into the process, the sudden news of an outright ban was particularly brutal.

“There’s nothing you can do, and it makes you feel so helpless,” said Olumide, the veteran. Olumide arrived in the US from Nigeria when he was 10 years old. He met his wife in Nigeria in 2012 after he left the military, and the two got married last year.

US Citizenship and Immigration Services approved the petition for his wife and daughter in January, just before the announcement of the ban. But they don’t yet have their visas – and the ban may make it impossible to get them.

Olumide had hoped they would be starting their lives together in the US by now, and said he was pained by feelings of guilt: “I made promises to her.” The couple hasn’t fully processed the news, he added: “We don’t want to think about not being together.”

He noted that his daughter has typhoid and his wife has malaria, and he constantly fears for their health and safety.

Hana Mohamed, a 20-year-old student in San Diego, who grew up in Sudan, said she was eager for her grandparents to come to the US, especially so her grandmother could get medical care in California: “It’s just so sad and frustrating. They are getting older, and I want to see them before anything happens.”

Mohamed said it was difficult to accept that the US was banning large groups of Muslims in the name of safety while seeming to do little about the ongoing terror threat of American mass shootings: “It’s just so shocking that we have come to this day where a whole nation of people are getting discriminated against. Isn’t the purpose of the United States to stand up for everyone who is getting hurt and treat them right?”

Isn’t the purpose of the United States to stand up for everyone who is getting hurt and treat them right? Hana Mohamed

One Eritrean American who works as an engineer in Silicon Valley, and requested anonymity for fear of hurting his family’s case, has petitioned for his mother to come live with him in the US and was hoping she would soon get an interview date at the embassy. Then the new ban was unveiled.

“We’ve waited our turn. We’ve followed the law. I’m a tax-paying citizen contributing to the economy,” he said, noting that his mother is 69 years old and lives alone in Eritrea. “This is just pure evil.”

He said he felt Trump was implementing the ban as a “soundbite for the campaign” while disregarding that it would leave Eritreans like his mother with no options: “This was our only hope to get her here.”

For Eritreans, the ban comes as as the Trump administration has ramped up deportations of Eritrean asylum seekers, despite the US government’s own acknowledgment of the torture and arbitrary detention Eritreans are currently facing.

Abraham Zere, an Eritrean journalist who was granted asylum in the US and now lives in Ohio, said it seemed some Eritreans were reluctant to speak out about the ban and live in fear of potential repercussions from both governments: “People are scared to even discuss it.”

Zere’s own family is affected: his mother is still in Eritrea, separated from her children. She can’t even video chat with her family because of the poor internet in Eritrea, which means she never gets to see her granddaughter, an eight-year-old she hasn’t yet met, he said.

Some warn the ban may have life-or-death consequences. For queer and transgender migrants in the targeted countries, it could lead them to embark on perilous journeys to escape to the US as they run out of options, said Zack Mohamed, who is Somali American and a member of the Black LGBTQIA+ Migrant Project: “This is a big ‘not welcome’ sign in front of our faces.”

In response to questions about the impact on migrants fleeing violence, a US state department spokesperson said the ban was not meant to “limit the ability of an individual to seek asylum”, adding: “Our first priority remains national security. We continue to work with our dedicated consular officers in the field to identify and expedite those individuals with urgent travel needs.”

Asked about charges that the ban is discriminatory, the spokesperson said the restrictions are based on “nationality” and “visa category” and that “consular officers do not adjudicate based on religion”. The spokesperson said there were specific criteria to determine which countries are restricted and noted that Chad was on the original list but removed in 2018.

Fighting to end the ban

With the first travel ban upheld by the US supreme court, there are few recourses left to challenge the policy. Advocates are hoping a Democratic president will immediately repeal the ban and have also recently renewed the push for Congress to pass the No Ban Act, which would end the ban and prevent discriminatory immigration policies.

Until then, Trump will continue to use his executive power to try to redefine what it means to be a citizen, advocates warned.

“The president of the United States, the US government is explicitly trying to decide who gets to be an American,” said Eric Naing, who is Burmese American and works with Muslim Advocates, a group that has challenged the ban. His family would not have been able to come to the US if the ban on Myanmar had been in place. “He’s saying I shouldn’t be American. My parents shouldn’t be American. It’s deeply upsetting.”

Olumide noted that the ban was punishing countless American citizens like him: “It’s hurting the exact people you’re trying to protect.”

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What Actions Can Be Considered Workplace Retaliation?

Woman at desk, head bowed over computer, as she grapples alone with illegal retaliation in her workplace

Retaliation is revenge and can conjure up notions of Liam Neeson going after his daughter’s kidnappers in “Taken.” Workplace retaliation isn’t quite so dramatic. Or at least, it’s hopefully not quite that dramatic.

But workplace retaliation can be devastating, and it can (but doesn’t always) break the law. Understanding the rules around workplace retaliation is critical for Human Resources staff members, managers, and anyone who has a position of influence in the business.

What Does Retaliation Look Like?

Jane comes to HR and says,

John keeps asking me out on dates. I have told him no and asked him to stop.

John is a high performer, so you transfer Jane to another less desirable shift.

This is a classic case of retaliation: Jane complained about sexual harassment, and you punished her by moving her to a different shift. Now, you may say “but her pay remains the same, her title and seniority weren’t affected. This isn’t retaliation. And besides, Jane didn’t even say it was sexual harassment.”

The employee doesn’t have to use the magic words to receive legal protection for their actions. Jane complained about unwanted sexual behavior in her department; therefore it’s a sexual harassment complaint. The transfer retaliates against Jane.

Bob has 40,000 Twitter followers, including several coworkers. He posts a picture of his paystub with the caption, “Can you believe that Acme Inc. pays such terrible wages?”.

One of his coworkers take a screenshot and presents it to you. Bob named the company, and many people have replied and retweeted his tweet. As a result, you call Bob into the office and tell him that he has violated the company’s social media policy, and for doing such, you are suspending him for two weeks without pay.

This is illegal retaliation for concerted activities. According to the National Labor Relations Board:

If employees are fired, suspended, or otherwise penalized for taking part in a protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

In other words, employees are allowed to discuss their working conditions with their coworkers, and talking about pay is covered by that law. It doesn’t matter that many others saw it on Twitter. The National Labor Relations Board still considers his comments concerted action.

Now, of course, there cases where retaliation is much more distinctly visible. Steve complains of racial discrimination. You immediately fire Steve for a poor attitude. But activities and actions like transfers  are a lot more difficult to pin down.

Is Retaliation Always Illegal?

It’s not. Retaliation is only illegal when the action that precedes the retaliation is protected by law. This can vary from state to state. It’s always illegal to retaliate against an employee for actions such as sexual harassment, racial discrimination, and concerted workplace activities. Some states have whistleblower protections that protect employees who bring up any variety of illegal activities, but not all.

If an employee makes a complaint that is unfounded, retaliation can be legal, and it can be illegal. For instance, if Jane complains that John is sexually harassing her, and you investigate and find out that actually John just asked her out one time. Factually, you found that Jane said no and he never bothered her again.

But, you still cannot retaliate against Jane as long as she genuinely believed that John behaved illegally. But, if you investigate and find out that Jane wanted John’s better shift, so she made up her complaint, then you can take action and retaliate.

The critical issue is that an employee must have a sincere belief that what they reported is illegal. Otherwise, retaliation is allowed.

Retaliation Doesn’t Stop Consequences

You may have a situation in which an employee is a poor performer, and just before you were going to discipline or terminate the employee, he files a complaint. That complaint doesn’t negate any other performance or employee actions. However, if you don’t have the documentation before the claim, acting after he files the complaint will look like illegal retaliation.

If you have documentation, you can continue along the disciplinary path, but do consider that the poor performance is a result of the harassment or discrimination, rather than an entirely separate situation.

How Do You Stop Retaliation?

Making a simple policy of “no retaliation” won’t solve all of your problems. (Of course, a policy never solves all problems.) You have to consider each situation carefully and on its own merits. Going back to Jane and John, how do you respond? If you determine John’s behavior wasn’t severe enough for punishment, yet Jane doesn’t wish to work with him anymore, how do you proceed?

If you transferred John to the less desirable shift, you are punishing him for something he didn’t do. Transferring Jane is retaliation as long as she had a sincere belief that John harassed her. Resolving such a situation can take serious negotiation and careful thought.

You may also need to sit down with Jane and explain why John’s behavior was not harassment, and that if she wishes to move to a different shift, you can do that, but otherwise, she still has to work with John. Explain to her that to transfer John when you have concluded that he did no wrong—is the wrong decision for the business.

You need to train your managers not to retaliate, and to report all protected complaints to HR. That will help you ensure that no retaliatory decisions happen and that you investigate all potential allegations.

Remember, if an employee sues you and you win on the facts, you can still lose on reported retaliation if you treated the complainant poorly. That’s why it’s critical to think through your actions before you take them and even consider discussing the right course of action with an employment law attorney.

 

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How Does an EEOC Complaint Hurt an Employer?

by Cam Merritt; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA

Updated March 1, 2019

When the federal Equal Employment Opportunity Commission (EEOC) receives a complaint that an employer illegally discriminated against its workers, that employer may be in for a rough ride. The ensuing months can bring time-consuming official requests for information, intrusive investigations, large legal bills, negative publicity and, if the complaint is upheld, expensive damages.

The EEOC Ground Work

The EEOC investigates complaints of discrimination based on race, color, national origin, religion, sex, age and disability. In general, only employers with 15 or more employees are subject to EEOC oversight. Any employee can file an EEOC complaint, not just those who have been victims of discrimination.

Inspection Procedure

Regardless of whether an EEOC complaint has merit, the employer is going to have to invest time, effort and sometimes money to deal with it. When a worker files a complaint, the EEOC notifies the employer and asks it for a “statement of position,” in which it offers its side of the story. The EEOC follows up with a formal request for the employer to supply documents and other information relevant to the case, such as copies of company human resources policies and personnel files.

EEOC staff may also visit the workplace, something that the agency itself acknowledges can be disruptive to company operations. While on site, the staff may ask the employer to make employees available for interviews. The employer can say no, but the EEOC can still contact them away from work – without the employer’s knowledge or permission.

A Typical Investigation Proceedings

All of this activity so far is simply fact-finding; the EEOC will use the information it turns up to determine whether the complaint merits further action. If so, it moves on to a formal investigation, which will chew up more time and money. The investigators have the authority to subpoena company documents, prohibit the employer from destroying any documents of any kind without permission and compel employees to provide statements.

The EEOC says the typical investigation lasts six months. If the employer doesn’t have an attorney involved in the case by now, it needs one to advise management of its rights and responsibilities. Robin Shea, a partner at the national employment law firm Constangy Brooks & Smith, says employers operating without a lawyer can turn even a seemingly trivial complaint into a major investigation by unintentionally admitting that a violation occurred or providing too much information.

Mediation or Costly Litigation

An employer may be able to avoid a formal EEOC investigation by agreeing to try to resolve the matter through mediation or by settling the complaint. Doing so will probably bind the employer to changing its policies and procedures, and the employer may have to compensate employees who complained. But the employer doesn’t have to admit any guilt or liability, and any agreements can remain confidential.

If the employer declines to mediate, or if the EEOC concludes that the case is too serious for mediation, the EEOC may sue the employer. Even if the EEOC decides not to sue – or take any action – the employees who filed the complaint reserve the right to sue. Regardless of whether the EEOC or the worker does the suing, litigation means not only considerable legal expense for the employer, but also bad publicity.

Penalties and Indemnifications

Penalties for an EEOC complaint – whether resolved through mediation, settlement or litigation – start with providing relief for workers who suffered discrimination. That includes paying workers’ back wages, reinstating them or even promoting them, depending on the nature of the complaint. Employers can be ordered to pay complainants’ legal and court costs. Things get worse if the case goes to trial and the employer loses.

The court can award compensatory and punitive damages to the employees who filed the complaint. Such damages are capped at $50,000 per person when the defendant is an employer with 15 to 100 employees; $100,000 for employers with 101 to 200 employees; $200,000 for 201 to 300 employees; and $300,000 for more than 300 workers. However, in cases of age discrimination and of sex discrimination in pay, the damages are limited to an amount equal to the complaining employees’ lost wages.

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MORE AND MORE WORKPLACE DISCRIMINATION CASES ARE CLOSED BEFORE THEY’RE EVEN INVESTIGATED.

INJUSTICE AT WORK

Published — June 14, 2019

Rep. Alexandria Ocasio-Cortez, D-N.Y., speaks at an event in support of the Paycheck Fairness Act. The legislation, which passed the House but has yet to come up for a vote in the Senate, aims to address unequal pay for women. (AP Photo/J. Scott Applewhite)

It’s a problem that starts with Congress.

This story was published in partnership with Vox.

INTRODUCTION

It’s a classic Washington catch-22: For years, Congress has chastised the agency that investigates workplace discrimination for its unwieldy backlog of unresolved cases while giving it little to no extra money to address the problem.

In turn, officials at the U.S. Equal Employment Opportunity Commission have found a workaround: Close more cases without investigating them.

Since 2008, the EEOC has more than doubled the share of complaints involving companies or local government agencies that it places on its lowest-priority track, effectively guaranteeing no probes, mediation or other substantive efforts on behalf of those workers. About 30 percent of cases were shunted to that category last year, according to internal data obtained by the Center for Public Integrity through a public-records request.

Only 13 percent of all complaints the EEOC closed last year ended with a settlement or other relief for the workers who filed them, down from 18 percent in 2008.

Source: U.S. Equal Employment Opportunity Commission

Chicago-based accountant Richard Nelson went to the EEOC’s office in March to file a complaint that said he needed help getting his employer to make a few accommodations for disorders including attention-deficit/hyperactivity, his right under the Americans with Disabilities Act. His case was shut before the appointment ended.

“I think they’re looking for slam dunks,” Nelson said. He was told that given the office’s small staff and the level of evidence he had in emails with his employer, the EEOC couldn’t proceed. Instead of trying to settle or mediate the matter, the agency mailed him a piece of paper telling him he could file a lawsuit, which he would have to do on his own dime.

“I don’t want to sue anybody. I just want to be treated fairly,” he said.

Since 1980, as the U.S. workforce has grown by 50 percent, Congress has kept the EEOC’s funding essentially flat — budget increases eaten away by inflation.  That’s meant more cases without the resources to handle them. Last year the EEOC took in more than twice as many complaints as it did nearly four decades earlier, with about half the staff.

Gabrielle Martin, a 30-year EEOC attorney and president of the National Council of EEOC Locals No. 216, said the agency’s decision to send more cases to the “killing fields” — closing them without investigation — is a problematic solution to budget and resources woes.

“If they don’t continue to dump cases, Congress will say, ‘Well, what did you do with the money we gave you?’” Martin said. But they can’t make the case for more funding, she said, if they appear to be succeeding without it.

The EEOC defended its handling of complaints in a statement, saying it’s gathering more information early on so people with stronger evidence can get the assistance they need. Last year, the agency put more cases into its high-priority pool than it has since creating the ranking process in 1996, nearly 26,000 in all.

But the share of workers the EEOC helped get a settlement or other relief — that 13 percent — barely budged from the previous year. And the workers deemed low priority were almost all out of luck: Of about 27,000 cases, less than half a percent got relief.

Attorney Jaz Park assists low-wage workers with discrimination claims through Chicago-Kent College of Law’s employment clinic. She said she’s noticed an increase in cases closing within a few weeks without any apparent investigation from the EEOC.

In one case, a retail employee with 21 years on the job was fired shortly after being diagnosed with a heart condition. Her employer claimed she was fired for forgetting to give a customer a receipt. “If you take the time, you see it just doesn’t add up,” Park said.

Stacy Villalobos, an attorney for Legal Aid at Work, a nonprofit that provides legal services for low-income workers, said the EEOC’s categorization “oftentimes has nothing to do with the merits of the case.” Frequently, she said, information that would prove a worker’s allegation is in the hands of the employer.

“There may be merit,” she said, “but without an investigation, you may never know.”

Source: U.S. Equal Employment Opportunity Commission

‘EMOTIONALLY DRAINING’

The EEOC requires an interview with most workers before they can file a complaint. That filters out tens of thousands of potential cases from entering its system in the first place. More than 60 percent of people who inquired about filing last year ultimately didn’t — the highest dropout rate in at least 15 years — for reasons such as discrimination laws not covering their situation or the process daunting them.

Most of the complaints deemed low priority were filed by workers who continued past this weeding-out step.

To reduce its backlog, the EEOC must close more cases than it receives each year — and with fewer investigators. The agency employed about 500 last year, 140 fewer than a decade ago. It also handles a separate load of federal employees’ complaints; that too has a backlog.

This has been wearing on the agency’s workers. In 2018, almost half of EEOC staff said in a government survey that they didn’t have the resources to do their jobs, higher than average for federal agencies. The agency had the highest percentage of staff strongly disagreeing that their workload is reasonable, as well as the highest percentage strongly agreeing that the work they do is important.

“It’s really, really emotionally draining,” said former EEOC regional attorney Charles Guerrier, who was based in Birmingham, Alabama, before leaving in 2012. He said he advised staff to make peace with not being able to help every worker. The budget was so tight, he said, that sometimes his office would run out of paper because there wasn’t money to buy more.

At the agency’s San Diego office, former district director and mediator Tom McCammon said employees regularly went into work on weekends to spend unpaid hours finishing cases. Even so, he said, sometimes so much time passed before investigators got to a case that they couldn’t reach the complainant — the phone number was dead, the home address no longer valid.

“In the meantime, cases are stacking up by the hundreds with no investigation,” said McCammon, who left in 2013. “Each one of those files is a person who had a problem.”

‘FAILURE TO PAY ATTENTION’

For years, the EEOC’s standing with Congress has fallen into the same category as an increasing number of its cases: low priority.

The agency competes with 11 others in its appropriations subcommittee, including high-profile ones like NASA and the Department of Justice, for funding from a limited pool. Hearings focused on the EEOC’s performance and needs are scheduled only once every few years, and they’re often dominated by discussions of the backlog and lawsuits against employers that members of Congress object to the agency pursuing.

Congresswoman Eleanor Holmes Norton, who headed the agency from 1977 to 1981, is one of the few members of Congress who have consistently pushed to bolster protections for employment discrimination. But as the representative for Washington, D.C., she has no vote.

Her perspective: Most lawmakers have little interest in fighting discrimination.

“Failure to pay attention to the EEOC is to leave a lot of people out in the cold,” said Norton, a Democrat. “Nothing can overcome a backlog that grows from lack of funding.”

Rep. Eleanor Holmes Norton (D-D.C.) (AP Photo/Susan Walsh)

There are some signs of a shift. Last fiscal year, after eight years of flat funding that meant the agency’s budget was effectively shrinking because of inflation, the then-Republican-controlled Congress approved a $15 million increase for the EEOC. What it took was the #MeToo movement’s viral spotlight on sexual harassment. Fifteen senators and 71 representatives, all Democrats, asked the appropriations committees to give the agency more money.

But Congress approved no increase for this year, letting some of that boost evaporate as the cost of living rose. Eighty-four members of Congress, all Democrats, have requested a $20 million boost for next year. President Donald Trump is proposing a $23.7 million cut instead.

About 25,000 complaints last year involved sex discrimination, sexual harassment or both. Race and disability discrimination each accounted for virtually the same number, though neither issue has caught Congress’ attention.

The leaders of the House and Senate subcommittees that control the EEOC’s funding did not respond to interview requests. But these panels that play an outsize role in determining what the agency can do have twice as many men as women. Of their 28 members, only four identify as African American, Hispanic or Asian American. None identify as Native American.

Together they take in far more contributions from business interests than groups representing workers — at least 27 times the amount in the latest election cycle, according to data from the Center for Responsive Politics.

That creates a challenge for the EEOC. As Victoria Lipnic, then acting chair of the agency, pointed out in her latest budget justification to Congress, “our primary stakeholder” is “the American workforce.”

Martin Luther King Jr. (center left) and other civil rights activists take part in the March on Washington for Jobs and Freedom on Aug. 28, 1963.  The march pressured John F. Kennedy’s administration to propose strong civil rights legislation and built on previous organizing efforts that opposed discrimination against black workers. (AP Photo)

A HAMSTRUNG AGENCY

Some of the limits imposed on the EEOC by lawmakers have nothing to do with money.

In December, Sen. Mike Lee, R-Utah, held the Senate back from confirming three commissioners — a vote that required unanimous consent at that point — over his objection to another term for Chai Feldblum, an Obama appointee and the EEOC’s first openly lesbian commissioner.

“The federal government should never be used as a tool to stamp out religious liberty,” he said, alleging that Feldblum would use her position to do so in the name of LGBTQ rights. (Feldblum wrote last year that she believes this is not a “winner-take-all” game and that the government should look to accommodate religious beliefs while still achieving “the compelling purpose of the law.”)

Without those three commissioners, the bipartisan agency lacked a quorum, which by rule prevented it from filing higher-cost or higher-profile lawsuits against employers. In May, the Senate finally resolved that problem by confirming Chair Janet Dhillon — two years after she was nominated.

In the past two years, Lee has also introduced legislation that would strip most of the power from the National Labor Relations Board, which enforces workers’ right to organize; repeal the Davis-Bacon Act, which aims to guarantee prevailing wages for federally funded construction workers; and allow employers to give time off instead of paying overtime wages.

Reached for comment, Lee spokesman Conn Carroll said the senator was not the only elected official who had objections to Feldblum’s confirmation and that Democrats could have chosen to vote on the other nominees separately. (Commissioners are commonly approved as a group.) The spokesman said each of the employment-related bills Lee introduced, none of which passed, would “increase the freedom of workers to work.” Last election cycle, Lee received $4.5 million in contributions from business interests and $8,000 from labor groups.

Two of Lee’s bills were co-sponsored by Sen. Lamar Alexander, R-Tenn., chairman of the Senate committee that reviews labor legislation and a member of the subcommittee that handles EEOC appropriations.

Alexander has been more attentive to the EEOC, and its backlog, than most lawmakers. When the agency proposed collecting wage data by sex, race and national origin from large employers as part of a cross-agency effort to curb pay discrimination in 2016, for example, he wrote to the White House’s Office of Management and Budget to request that it squelch the idea. Among his concerns was that collecting pay data from employers — which business associations including the U.S. Chamber of Commerce opposed — would further delay the resolution of EEOC cases.

U.S. Sen. Lamar Alexander (R-Tenn.) (AP Photo/Mark Humphrey)

“The proposal is likely to worsen that backlog as the EEOC will now be sifting through the billions of pieces of new data instead of focusing on its mission of investigating complaints of discrimination in the workplace,” he wrote.

However, Ron Edwards, a former EEOC official who led the initiative, said the agency actually planned to use the extra data — which would be collected and analyzed electronically — to resolve complaints more efficiently.

Alexander also introduced the EEOC Reform Act, which would have barred the agency from collecting pay data until it reduced its backlog by about 90 percent. Though the bill was unsuccessful, he had more luck with the OMB, which in 2017 stayed the EEOC’s collection of the data. That decision was reversed this March following a lawsuit by the National Women’s Law Center and the Labor Council for Latin American Advancement. The Department of Justice has filed an appeal.

Last election cycle, Alexander received more than $7 million in contributions from business interests — 130 times what he received from labor groups. Alexander, who has said he won’t seek reelection next year, did not respond to multiple requests for comment.

Edwards, who worked at the EEOC for nearly 40 years, knew the pay information would be a powerful tool to correct discrimination — and that employers didn’t want to turn it over.

“The real crux of employment is pay,” said Edwards, who retired in 2017. “If you collect the pay data, you get a better sense of how people are being treated.”

Chad Griffin, president of the Human Rights Campaign, spoke to advocates for LGBTQ rights before a House vote on the Equality Act of 2019. The bill, which passed the House in May but has yet to come up for a vote in the Senate, would prohibit discrimination based on sexual orientation or gender identity. (AP Photo/J. Scott Applewhite)

In recent months, Democrats have introduced bills, in some cases co-sponsored by a handful of Republicans, to strengthen discrimination law enforcement, including measures to address the gender pay gap, improve protections for LGBTQ workers and prohibit non-disclosure agreements in workplace harassment cases.

None has passed.

Labor economist William Spriggs isn’t surprised by that or the funding constraints that affect workers’ chances of help at the EEOC. Congress’ treatment of employment discrimination and workers’ rights, he said, is par for the course in the U.S.

“There is a tendency in society to think of labor law as littering or something,” he said. “They don’t think of it as an actual violation.”

 

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Terrorized by a Hostile Work Environment? 7 Essential Tips for 2020!

Source: Forensic Notes
If you’ve worked in a hostile work environment, you know the mental and physical toll it can take on you.

Perhaps, one of the reasons it takes such a toll is due to the feeling of helplessness to change the situation.

In this article we’ll discuss some tips and resources available to help you deal with a hostile work place and take control of a difficult situation.

Hostile work environment is any situation that makes a person feel constantly uncomfortable at their place of employment.

With potential consequences to both your physical and mental health – it is important to fight against hostile work environments.  Even if it means using the legal system.

However, in order for an employee to utilize the legal system, there must be proof of inappropriate conduct.

Situations that are considered a hostile workplace have been defined by various Federal Laws.  This includes the Civil Rights Act of 1964.  These laws describe inappropriate conduct in which a person is harassed or discriminated against due to:

  • race
  • religion
  • gender
  • national origin
  • age
  • disability.

Furthermore, the hostile environment must be pervasive and severe.  And to a level that deviates from the terms and conditions of a person’s employment.

It must create an environment that is abusive and not conducive for an employee to operate in, thereby affecting the quality of their work.

The test is generally would a reasonable person find the environment to be hostile or abusive?

The Equal Employment Opportunity Commission (EEOC) agency is responsible for investigating claims of this nature.

One important distinction to bear in mind is that the law is not meant to protect against simple teasing, brusque comments or isolated situations that are not serious.

In other words, if a boss is yelling at everyone (in an offensive manner) it may create a hostile space.

But this may not become problematic in the eyes of the law unless a particular person is singled out on one of the previously mentioned grounds.

Definition: What is a Hostile Work Environment?

Many employees believe that a lousy boss, a rude co-worker, or an unpleasant workplace constitutes as a hostile work environment. Others might believe it’s a lack of privileges, perks, and benefits.

However, in order for a workplace to be hostile, specific legal criteria must be met.

The definition of a hostile work environment is created when an employee feels uncomfortable or fearful in his or her work-space.  And this fear or discomfort is due an employer or coworker whose actions or behavior make doing their job impossible.

This includes; offensive behavior, intimidation or verbal or physical abuse.

The actions, communication, and behavior must be discriminatory in nature.

Workplace Bullying ≠ Hostile Work Environment

Workplace bullying DOES NOT constitute a hostile work environment.

Unfortunately for anyone being targeted by a workplace bully, the law in most parts of the U.S. says that behavior is perfectly legal.

As discussed above, the term “hostile work environment” only applies if the behavior is harassment or discrimination. And it’s the EEOC, the federal agency that regulates employers on this issue, that has set the boundaries.  According to the EEOC, harassment or discrimination is only happening if it’s “based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”

But here’s a few glimmers of hope.

First, your city may have it’s own laws prohibiting workplace bullying, so do a little research on that.

Second, it is quite possible that bullying could be considered workplace violence.

According to OSHA, the federal agency that regulates employers on this issue, it defines violence as ranging “from threats and verbal abuse to physical assaults and homicide.”

Of course, realizing you are the target of violence at work is not good news.  But using this knowledge may help make your case to HR and get their attention if you use explain the issue in these terms.

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Can an Employer Be Sued Due to a Stressful Work Environment?

writer bio picture

Stress, in and of itself, is not a bad thing. Controlled stress pushes us to do our best. In small amounts, it motivates, invigorates and sharpens the senses. In the MSNBC article, “Can Stress Actually be Good for You,” Dr. Lynne Tan of Montefiore Medical Center in New York, defines stress as, “a burst of energy.” On the other hand, an excessive amount of stress is physically and emotionally harmful. It can be illegal too, if it is caused by discriminatory, degrading or harassing actions in the workplace.

Hostile Work Environment

Employers cannot be sued for stress that is a normal part of the work environment. However, stress that is caused by ongoing harassment, unwelcome conduct or discriminatory practices is illegal. Actions that constitute a hostile work environment may be physical or verbal in nature. To meet the definition of hostile work environment, the harassment must be severe and such that it interferes with an employ’s ability to do his job. Hostile work environment allegations are investigated and prosecuted by the U.S. Equal Employment Opportunity Commission.

Discrimination

Name calling, slurs, offensive joke telling, unwanted touching and discriminatory comments contribute to workplace stress and violate numerous federal laws. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on national origin, sex, race, religion or color. The Age Discrimination in Employment Act of 1967 prohibits age-based discrimination and protects employers age 40 and older. The Equal Pay Act of 1963 protects woman and men against unequal pay for substantially the same work. And, the Americans with disabilities act of 1990 prohibit employers from using discriminatory practices against qualified workers with disabilities.

Retaliation

Retaliation occurs when an employer or other employee creates a hostile work environment in order to pay an employee back for engaging in a protected activity. It may involve unjustified demotions, firing or harassing behaviors. Protected activities include filing discrimination charges against the employer, participating in an investigation or lawsuit against the employer, whistleblowing activities and making a complaint about a manager or supervisor to a higher authority in the organization.

Constructive Discharge

Constructive discharge occurs when an employer engages in behaviors designed to make an employee quit. The EEOC defines constructive discharge as behaviors that “make the work environment so intolerable a reasonable person would not be able to stay.” There are many reasons an employer may entice an employee to quit, including retaliation and to avoid vesting in pension or medical benefits.

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The Different Types of Harassment in the Workplace

man inappropriately touching female coworker at her desk

Workplace harassment is all too common. As victims are often unsure of what qualifies as harassment and what to do when they’re being harassed, it often goes unreported and continues to be an issue. Workplace harassment can ruin a great job and turn a company into a toxic and unproductive environment.

The “Me Too” movement has enhanced awareness of sexual harassment and many employers have reexamined and strengthened their policies and procedures. Victims have felt more comfortable reporting incidences of harassment. A recent ABC News-Washington Post poll indicated that 33 million U.S. women have been sexually harassed in work-related incidents.

Definition of Workplace Harassment

Workplace harassment is a form of discrimination that violates Title VII of the Civil Rights Act of 1964 and other federal regulations.

The Equal Employment Opportunity Commission (EEOC) defines harassment as unwelcome verbal or physical behavior that is based on race, color, religion, sex (including pregnancy), gender/gender identity, nationality, age (40 or older), physical or mental disability, or genetic information.

Harassment becomes unlawful when:

  1. Enduring the offensive conduct becomes a prerequisite to continued employment, or
  2. The conduct is severe or pervasive enough that a reasonable person would consider the workplace intimidating, hostile, or abusive. Also, if a supervisor’s harassment results in an obvious change in the employee’s salary or status, this conduct would be considered unlawful workplace harassment.

Some States and Companies Have Broader Definitions

Some states have statutes that prohibit discrimination or harassment on the basis of whether a person is a smoker. A handful of states, including Wisconsin and New York, along with some private companies have laws or policies that prohibit discrimination and harassment based on arrest records or convictions.

Illustration by Hugo Lin. © The Balance, 2018

Harassing conduct may include offensive jokes, slurs, name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive pictures, and more.

Workplace harassment isn’t limited to sexual harassment and doesn’t preclude harassment between two people of the same gender. The harasser can be your boss, a supervisor in another department, a co-worker, or even a nonemployee. Interestingly, the victim doesn’t necessarily have to be the person being harassed; it can be anyone affected by the harassing behavior. To file a valid harassment claim, you have to show that your employer tried to prevent and correct the harassing conduct and that the employee unreasonably rejected the employer’s corrective efforts.

Some states have broad definitions of what constitutes harassment. For instance, a court in Florida determined that “fat jokes” made about an obese employee violated the Americans With Disabilities Act. A New Jersey court ruled that a person could bring a claim for disability harassment based upon two remarks made about their diabetic condition.

Harassment at Job Interviews

In addition to harassment occurring in the workplace, harassment can also take place during a job interview. During an interview, employers should not ask about your race, gender, religion, marital status, age, disabilities, ethnic background, country of origin, or sexual preferences.

These are discriminatory questions because they are not relevant to your abilities, skills, and qualifications to do the job.

The Boundary for Acceptable Behavior

Sometimes it’s hard to tell whether if a situation qualifies as workplace harassment. Some common situations which count as workplace harassment include:

  • Pedro was a victim of workplace harassment when his boss repeatedly referred to him with reference to his country of origin and characterized his work negatively based on his heritage.
  • Ellen filed a claim with the EEOC because her boss restricted her to a receptionist role based on her appearance despite receiving her college degree and possessing the skills for an inside sales job. He repeatedly said that customers liked “having a looker up front.”
  • Bonnie was subject to workplace harassment when her supervisor asked her out for drinks on many occasions and told her that she could go a long way if she played her cards right with him.
  • Jane was uncomfortable with references to the sexual conquests of co-workers in the break room. She responded to this workplace harassment by mentioning her discomfort to one of the perpetrators with whom she had a rapport. He spoke to the others, and their behavior ceased.

The Law and Your Options

Laws regarding workplace harassment are enforced by the Equal Employment Opportunity Commission. Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with the EEOC.

However, prior to doing so, victims should usually make an effort to resolve the situation internally. One option is to reach out to the offending individual directly. Describe your feelings and the unacceptable language or behavior and request that it stop. Another option could involve contacting your supervisor for assistance if you are uncomfortable confronting the offender directly.

In cases where the perpetrator is your supervisor or if you are uncomfortable approaching her/him, you can contact either the Human Resources department or your supervisor’s boss and request redress. In addition, many organizations have designated an EEO or workplace complaint officer specializing in these issues who can be contacted for a confidential consultation.

Job applicants and other harassment victims may choose to consult a labor/employment attorney if other measures have not resulted in a satisfactory resolution. If so, be sure to select a lawyer with extensive experience and or a certification in employment law. Your local bar association will usually provide information about state certifications or ways to identify specialists.

Historically, some employers have urged victims to sign confidentiality agreements as part of the resolution process. Consult an attorney before relinquishing your rights.



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