Do I Have A Case?

By Bryan A. Chapman, Esquire

When a potential client contacts me, they usually want to know whether or not they have a case.  Unfortunately, there is no simple answer to this question because the laws governing job discrimination are complicated and the facts of any case are subject to interpretation and change.  Employers routinely deny allegations of job discrimination.

The typical employee works at the pleasure of their employer.  The doctrine is called “employment-at-will” and it means that an employer can terminate an employee at any time and for any reason, good or bad, provided it is not for a discriminatory purpose.

It means that being terminated, in and of itself, is not proof of discrimination, even if the employee has a good job performance record.  This doctrine also applies to promotions, demotions, and transfers.  Employment-at-will is too steep a hurdle for most discrimination claims.

If an employee claims that his or her termination was discriminatory, then evidence is needed that specifically establishes a discriminatory motive on the part of the employer.  Direct evidence of an employer’s discriminatory motive is rarely available.  Most employers are not going to: 1) admit that employees are being terminated for discriminatory reasons or 2) engage in blatantly discriminatory behavior.  However, from time to time, there are exceptions.

A discriminatory motive typically has to be proven by means of circumstantial evidence.  For instance, an employee and/or group of employees are treated more harshly than similarly situated employees of a different race, sex, national origin, etc.  These cases are strongest when a group of employees are alleging the same type of discrimination.

Furthermore, the employee must demonstrate that his or her job performance was not an issue.  Employers typically claim that an employee’s termination was due to a non-discriminatory reason, such as, deficient job performance.

A hostile work environment claim is different from the typical job discrimination claim.  These claims involve overt discriminatory behavior, such as, name-calling, slurs, jokes, innuendos, and inappropriate touching and advances that make the workplace abusive and intimidating.  If an employer has notice and fails to take prompt and effective corrective action, the employer can be held liable.  A hostile work environment claim can be based on race, sex, national origin, etc.  These cases are strongest when a group of employees are alleging the same hostile work environment.

If a female employee complaints that a male manager or co-worker is engaging in inappropriate sexual behavior, and the employer fails to take corrective action that stops the harassment, the employer could be found liable for compensatory damages, such as, emotional pain and suffering.  In their defense, employers will claim that: 1) they did not have notice of the sexual harassment; 2) the sexual behavior was not severe or was consensual; or, 3) corrective action was taken.

Retaliation involves employers who punish employees for complaining about discriminatory behavior.  To establish a claim of retaliation, the employee has to demonstrate that: 1) they engaged in protected activity, such as, complaining about discrimination; 2) the punishment was severe enough to deter a typical employee from continuing to complain about discrimination; and, 3) the punishment began shortly after the complaint.  Today, the most popular type of job discrimination claim is retaliation.

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The Stress of Workplace Discrimination What Can Employers and Employees Do?

Michelle K. Massie, Monster Contributing Writer

The Stress of Workplace Discrimination 

How to Respond to Workplace Discrimination

 

When Audrey Murrell’s mother was a biology student in the 1950s, she was told that she had to wait for all the white students to finish their experiments before she could use the lab.

Fast-forward to the 1980s, when Murrell was a graduate student herself. The discrimination she faced was not as blatant but just as real. She was excluded from study groups, and other students would take all the copies of homework assignments before she could get one.

“You’re left with this feeling of ‘is this discrimination, or is it me, or is it them?'” says Murrell, associate professor of business administration and psychology at the University of Pittsburgh’s Joseph M. Katz Graduate School of Business. “You know it’s them, [but] it’s just harder to prove, because it’s not obvious discrimination.”

Discrimination in the workplace and academia leads to more than just a bad day. It takes a toll on the physical, mental and emotional well-being of employees and students.

“There are two broad categories of overt discrimination — threats and intimidation,” says Murrell, who for the past 15 years has researched issues such as affirmative action, workplace discrimination, sexual harassment and mentoring practices. “It’s clear [these are] discrimination. Then there are subtle forms of discrimination that are more challenging and harder to detect.”

Workplace Discrimination Is Common

Forty-six percent of African American workers believe they have been treated unfairly by their employers, compared with 10 percent of whites, according to a 2002 Rutgers University study, “A Workplace Divided: How Americans View Discrimination and Race on the Job.” The study also found 28 percent of African Americans and 22 percent of Hispanics/Latinos have experienced workplace discrimination, compared with 6 percent of whites.

“Often, the burden falls on the worker to prove that he or she is being discriminated against,” says Murrell. “This can lead to a lot of self-doubt and lack of confidence. Then you’re likely to see withdrawal, detaching oneself from the job, which leads to internal bitterness and anger.”

The feelings of hopelessness, mistrust, despair and alienation common among people facing bias don’t stop at the end of the workday. Stress and depression don’t just affect employees at work but also at home among family, friends and loved ones.

Hard to Ask for Help

A related issue is the stigma that still surrounds mental health and illness in the African American community. “There’s this belief that we have to appear strong at all times,” Murrell says. “Many of us don’t believe in going to a therapist and discussing our personal business with a stranger. [But] bias and the way it affects our physical and emotional state has very real consequences. Employers have to take notice as well, because these things will negatively impact performance.”

What Should Employers Do?

Murrell says employers can address workplace bias through the following actions:

  • Recognize the difference between job level and job title. An employee may be granted a particular title, but if the level of responsibility and challenges haven’t changed, the worker can feel he is being appeased and that he isn’t fully trusted or valued within the organization.
  • Examine barriers to both entry and advancement.
  • Study companies that consistently do things right. Pay attention to diversity leaders, and integrate their best practices into your workplace culture.
  • Concentrate on targeted recruitment strategies.
  • Create focused employee-development initiatives such as formal mentorship programs that equalize resources and facilitate diversity.
  • Form affinity or diversity groups within the company.

What Should Employees Do?

Workers also play an important part. According to Murrell, they should:

  • Participate in company-sponsored affinity and networking groups.
  • Join external professional organizations.
  • Develop informal social support networks made up of people who can offer insight into workplace issues.
  • Consider therapy or counseling. Community-based employee assistance programs also offer more holistic approaches to dealing with workplace issues.
  • Seek out a job coach who can help you move to the next level in your career.
  • Keep a detailed log of events in case you decide to file a complaint with your supervisors, human resources department, union, a lawyer and/or the Equal Employment Opportunity Commission (EEOC).

“Today’s discrimination is a lot more subtle,” Murrell says. “If we don’t tell younger people out there that discrimination has taken a different form, then they’ll think they’re the problem.”

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Tips to Deal with Stress of Sexual Harassment


 

Sexual harassment is an uncomfortable and embarrassing experience for victims. Sometimes, they feel devastating after these incidents. Sexual harassment may increase anxiety and depression of a person because of shame. Remember, the sexual advances, physical or verbal conduct of sexual nature, sexual favors that implicitly or explicitly affects your job. These acts may increase the level of harassment. These events can interfere with your work performance or create an offensive or hostile work environment.

Law for Sexual Harassment

Civil Rights Act (Title VII) of 1964, a federal law, protects folks from discrimination because of sex. As per this law, it is illegal from employers to discriminate workers in firing and hiring. Sometimes, employers change terms and conditions for genders, such as raises, job opportunities, and promotions. Remember, sexual harassment is similar to sex discrimination that can increase the chances of violation of laws.

Sexual discrimination or sexual harassment under this law proves that the harasser targeted particular sex or displayed hostility to a gender. This behavior is unacceptable regardless of the gender of victim or harasser. A few states have a law for employee protection against sexual harassment. If you are a victim of sexual harassment or discrimination, immediately contact a reliable lawyer. An experienced lawyer will help you to file a report against harassment. If you are not sure what to do in this situation, a lawyer can guide you about appropriate actions.

Before reporting sexual harassment, you have to take particular steps for protection of your rights. For instance, the policy of your employer may require you to take essential steps. Sometimes, you have to submit a report of sexual harassment to managerial employees or human resources. The report should explain the details of a harasser. A lawyer can help you with the documentation. With his/her assistance, you can outline the description of harassing conduct. In the case of nervousness, you have to speak to a manager and HR. Confidently share relevant information calmly and clearly.

How can a lawyer help you?

A harassment attorney will not only help you to prepare a harassment report but also advise you to take essential steps for your protection. A few basic steps are as under:

  • Document the harassment and its related discussions with your boss.
  • Prepare you to deal with harassers (if these events continue).
  • Advise you to report future harassment to the employer.
  • Monitor response of employer to your complaint so that your boss should not retort against you.

To deal with workplace harassment, you have to respond immediately and clearly. A worker subjected to sexual harassment can be confused and emotionally drained. He/she may deal with different perspectives on his/her current circumstances to formulate an emotional response. An attorney can help you to take the right steps.

Investigation During Harassment

An employer is responsible for investigating complaints of discrimination and sexual harassment. Your employer can’t take any negative step during an inquiry. An experienced attorney can monitor the process of investigation. The employer is responsible for proceeding with the inquiry by law.

Retaliation

Law prohibits employers from any retaliation against employees after receiving a complaint about sexual harassment. Retaliation may take numerous forms. It must not be limited to disciplinary termination or write-ups. These actions can be retaliation. If your boss removes you from a project or eliminates you from events, social outings, or meetings after reporting harassment, inform your sexual harassment lawyer. An attorney may analyze these actions to find out signs of retaliation.

Filing Charges

An attorney may define the formal measures that you may take to challenge events of sexual harassment. These may include filing discrimination charges against an employer with the anti-discrimination agency of your state.

The attorney will explain the merits and demerits of filing charges against your boss. If you are not satisfied with the response of your employer after a sexual harassment complaint, discuss this matter with your lawyer.

Understand Your Rights

Sexual harassment is a serious issue that is delimited by the law. A person can’t harass a person because of his/her sex. You can’t request sexual favors or sexual advance. It is not legal to touch a person inappropriately. If your colleague is making sexual remarks or sharing sexually offensive jokes, you can file a complaint against him/her. Remember, sexual bullying is not allowed. There is no need to work in a sexually hostile environment.

Sexual harassment can be common among male and female. The law doesn’t apply to offhand or teasing remarks. Sexual harassment occurs when adverse remarks produce a toxic environment at the office. Any kind of discrimination from an employer is unacceptable.

Impacts of Sexual Harassment on Victims

Keep it in mind that the reaction of each person for sexual harassment trauma can be different. A person may feel shocked and ultimately move to renunciation. These responses are natural because you are a victim of sexual harassment. You may feel low self-esteem. Moreover, you may find it challenging to function regularly. Try to address this issue or leave your workplace, if possible.

Victims of sexual harassment find it challenging to sleep. They don’t show interest in exercising, eating, and other tasks. Moreover, they don’t want to get up and get ready for their office. Other symptoms of sexual harassment include difficulty concentrating, headaches, stomach issues, elevated blood pressure, and forgetfulness. Victims may feel angry, betrayed, hopeless, out of control, and powerless. Sometimes, the victim experience anxiety, suicide thoughts, and depression.

Tips to Heal from Sexual Harassment

It can be difficult to move on after sexual harassment. The situation can be hopeless or complicated for you. Remember, your negative thoughts will make everything complicated. You can improve this situation with some counseling. Try to make sense and use your experience to heal from sexual harassment and move on. Here are some tips to decrease your depression and anxiety because of sexual harassment.

Accept the Situation

Try to validate your experience instead of minimizing the situation. There is no need to make excuses for the culprit. It is essential to turn your expertise into emotions. You should not bottle up your anger. Use healthy ways to express your feelings, such as stress-reducing activities, yoga, meditation, and prayer.

Share This Event with Someone

Try to talk to a safe person so that you can decrease your depression. This person should respect your feelings. You must not share your feelings with a person who will tell you that you are being emotion and overreacting. If you don’t have a trusted friend to share your feelings, you should select a support group or an attorney to share your opinions.

Journal About Experience

It is crucial to describe the effects of sexual harassment on you. Evaluate different emotions and write a letter to the harasser. Write everything that you want to tell him, but can’t. In this way, you can heal yourself. Journaling may help you to improve your situation. It is a safe way to write what is running on your mind.

Don’t Blame Yourself

Remember, sexual harassment is not your fault. There is no need to feel ashamed off because you can’t control others. You must not feel guilty after these incidents. A guilty person is a perpetrator because of sexual harassment. Completely control your response and share your displeasure with the harasser. Let this incident empower you instead of feeling confused.

Keep the past away from you and detach from possible trauma. Feel free to change your career or job for your mental satisfaction. If your identity is your work, pay attention to your work. Develop new interests and hobbies to change your workplace. Feel free to find healthy methods to deal with sexual harassment positively.

Help Others with Your Experience

After sexual harassment, you have to pay attention to your experience. Deal with this event in a better way to teach harasser a lesson. Try to help others with your experience by writing a blog. You should share your experience with readers. Build a website or support groups for victims. Speak to other people and help them to win the situation. In this way, you can turn a negative situation into positive. It will help you to build your resiliency.

Find a Reliable Counselor

A person may find it difficult to move on, so he/she will need a counselor. He/she specializes in dealing with sexual harassment in the workplace. A counselor may specialize in sexual abuse or assault. It can be helpful for a victim. Moreover, you can get the mental health staff of your workplace or school after a harassment event at school or work.

Sometimes, a counselor can compromise your privacy by sharing your information with others. For this reason, you should select a reliable counselor to share your details. Try to find a counselor from a decent place. This person should have the ability to help you in this difficult time.

If your family or friends are dealing with the outcome of sexual harassment, you should help them in this situation. Ask them to meet a sexual harassment attorney to get the necessary support.


AUTHOR

Rachel Brooks

Rachel Brooks is a contributing writer for Attorney at Law Magazine and Real Estate Agent Magazine. She has written articles on various marketing and legal related topics as well as penned featured articles on legal and real estate professionals.

 

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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The Hidden Health Effects Of Sexual Harassment

Victims of sexual harassment often experience emotional and physical symptoms for years to come.
Unhappy woman's form double exposed with paint splatter effect

wundervisuals / Getty Images

 
 
By Nicole Spector
 

Sexual harassment in the workplace is nothing new, but the issue is seeing a tidal wave of recognition and attention as celebrities, co-workers and others step up to accuse Hollywood heavy weights like Harvey WeinsteinKevin Spacey and Louis C.K. of sexual misconduct. Through their stories, we’ve learned that sexual harassment can wreak havoc on its victims, and can cause not only mental health issues, but physical effects as well.

Dr. Colleen Cullen, a licensed clinical psychologist, notes that for victims of sexual harassment, the most common diagnoses are depression, anxiety, and even post-traumatic stress disorder (PTSD).

“An experience [with sexual harassment] can either trigger symptoms of depression and anxiety that are new to the person; or it can exacerbate a previous condition that may have been controlled or resolved. Patients may also see a worsening of symptoms,” says Dr. Cullen. “Some research has found that sexual harassment early in one’s career in particular can [cause] long-term depressive symptoms.”

Someone going through or dealing with the aftermath of sexual harassment may also exhibit symptoms of PTSD, especially if the harassment leads to violence and/or assault.

“Among women who experience a sexual assault, 90 percent who experience sexual violence in the immediate aftermath exhibit symptoms of acute stress,” says Dr. Helen Wilson, a licensed clinical psychologist with expertise on the effects of trauma. “For many people, these symptoms dissipate over time through social support and coping strategies, and many people totally recover and move on; others will be so distressed that it really interferes with their work and life. It takes a certain number of symptoms to diagnose, but that’s when it can become PTSD.”

It’s Not All In Your Head; The Body Reacts, Too

Now, there are some who may counter, “Well, I can see how sexual assault can lead to such disturbances, but how can harassment be so harmful? Sounds a bit dramatic!” This thinking is deeply problematic not only because it dismisses medical science and undermines the stories of survivors, but also because it feeds the crippling doubt that so many victims face. These doubts can foster denial, which can lead to its own set of complications, particularly around physical health.

“Sometimes sexual harassment registers as a trauma, and it’s difficult for the [patient] to deal with it, so what literally happens is the body starts to become overwhelmed,” says Dr. Nekeshia Hammond, a licensed psychologist. “We call it somatizing: the mental health becomes so overwhelming one can’t process it to the point of saying ‘I have been traumatized’ or ‘I am depressed.’ Essentially, it’s a kind of denial that when experienced for a long state can turn into physical symptoms.”

These physical symptoms can run the gamut, manifesting as muscle aches, headaches, or even chronic physical health problems such as high blood pressure and problems with blood sugar.

“In the long term, it could lead to heart issues,” says Hammond.

One needn’t be in shock or denial to experience these physical effects. Hammond adds that even patients who have confronted issues with full awareness and recognize that they are anxious or depressed can experience these problems. This is because the brain and body are inextricably linked, as Dr. Wilson explains.

Physical symptoms can run the gamut, manifesting as muscle aches, headaches, or even chronic physical health problems such as high blood pressure and problems with blood sugar.

“The part of our brain that processes emotions, including stress, are among the earliest to develop, and is right next to the brain stem, which deals with involuntary functions such as heart rate and breathing,” says Wilson. “When we’re stressed resources go there, which can impact cardiovascular functioning, autoimmune diseases, metabolic function, [and so on],” says Wilson. “Sometimes people think stress is in our head, but our brains are an organ like any other. It’s all very connected. Neurotransmitters found in our brains are also found in our gut. It’s a real thing: this is why we tend to get sick when we get stressed, and over time, if we’re in constant stress or if it’s too much to handle, then there are physiological consequences.”

Sexual Harassment In The Workplace: ‘A Slithering Snake’

While sexual harassment under any circumstances can wreak havoc on a victim’s health, workplace harassment is a special kind of ugly. Nannina Angioni, a labor and law employment attorney who has worked on hundreds of sexual harassment cases describes it as “slithering snake that ripples its way through a work environment causing disastrous results.”

“Employees talk of having a pit in their stomach commuting to work, having anxiety, panic attacks, inexplicable fits of crying and physical manifestations of stress: hair falling out, hives, weight gain or loss, sleeplessness and lethargy,” says Angioni.

“They may feel that they did something to make this happen or egg it on in some way,” says Cullen. “Embarrassment can be experienced, a fear over other people finding out. Also, particularly early in their career, a person may doubt their ability, and wonder if they weren’t only hired because of their sexual value. They may question their achievements, and if they’re young or new to a field, they may ask, ‘Is this just what it’s like in this field?’ If they have nothing to compare it to, they may not have an idea of what is normal or what the appropriate recourse is.”

Here’s where the research Cullen mentioned earlier, which shows that sexual harassment early in one’s career can have long-term mental health effects comes into play. Wendy L. Patrick, a prosecutor and educator, has personally seen depression “last up to a decade” for women who experienced sexual abuse in the workplace, and notes that it can affect their performance in subsequent jobs.

Surely the (often silent) suffering of the victim mustn’t be underestimated, but it’s important to note that when one employee is being abused, their colleagues may also be afflicted. After all, it’s stressful to keep a secret, especially one that is so clearly damaging.

“When employees are questioned about the effect of harassment [on a colleague], you always hear about some physical manifestation of stress. They can’t sleep. They have to keep getting up to go to the bathroom,” says Angioni. “It’s really hard: You’re watching someone on your team suffer, or even wither away as they just try to get through the days.”

When To Help A Hurting Colleague — And How To Get Treatment

A victim of sexual harassment may ultimately want to speak out against their abuser, but it’s important for others to speak up, too, even ahead of the victim. If you know something, say something; but don’t gossip —that only escalates the problem and further endangers the victim.

“When people suspect something is going on and don’t speak out, the harassment evolves,” says Angioni. “I counsel companies and employees to go about it tactfully. If you think something is happening, don’t talk about it at the water cooler, or in front of the victim. Don’t send snarky emails or texts. Talk to someone in management. Help without creating a further problem. If there is not an HR person, find a trusted supervisor. If you really can’t find someone you trust, you contact the Department of Fair Employment and Housing.”

If you know something, say something; but don’t gossip — that only escalates the problem and further endangers the victim.

For the victim, speaking out may be challenging, and in some cases they may just really not be willing or able to do so. It’s important that both victims and their supporters understand that while silence isn’t ideal, it may be what works for the coping or healing process at the moment. But only if you’re talking to a mental health professional about what is going on. This cannot be emphasized enough: If you are being sexually harassed you mustn’t keep this a secret; it is literally toxic to your health.

“Some victims will never report abuse and they have that right,” says Dr. Hammond. “It’s a case by case thing and sometimes there’s a reason for staying silent — if you feel your safety is threatened, or if you’re literally on the verge of having an emotional breakdown and will be unable to function. But you need to reach out to someone.”

If you’re worried about the cost of visiting a professional, or if you’re wary to begin therapy, Dr. Hammond recommends calling the National Sexual Assault Hotline at 1-800-656-HOPE (4673). Services are free and include confidential support from a trained staff member, help finding a local resources if needed, counseling, referrals, information on your local laws regarding harassment and information about medical concerns.

 

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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What Makes a Work Environment Hostile?

Legal Guidelines Exist That You Need to Know to Define a Hostile Workplace

BY  

What constitutes a hostile work environment? Some employees believe that a bad boss, an unpleasant work environment, a rude coworker, failure to qualify for a promotion, or the lack of perks, privileges, benefits, and recognition can create a hostile work environment.

And, yes, admittedly, many of these issues do contribute to an environment that may not be especially friendly or supportive of employees. The environment without employee friendly offerings can be awful. A bad boss contributes particularly to an environment that employees may see as hostile.

Traditionally, bad managers took the brunt of the blame when employees quit their job. (More recent thinking is that a lack of career development and opportunity is a larger contributor.) All of these factors can make an environment seem hostile to an employee’s wants and needs. And, they are.

A boss who verbally berates you about your age, your religion, your gender, or your race is guilty of creating a hostile work environment. Even if the comments are casual, said with a smile, or played as jokes, this does not excuse the situation.

This is especially true if you asked the individual to stop and the behavior continues. This, by the way, is always the first step in addressing inappropriate behavior at work—ask the inappropriately behaving boss or coworker to stop.

    • The actions or behavior must discriminate against a protected classification such as age, religion, disability, or race.
    • The behavior or communication must be pervasive, lasting over time, and not limited to an off-color remark or two that a coworker found annoying. These incidents should be reported to Human Resources for needed intervention.
    • The problem becomes significant and pervasive if it is all around a worker, continues over time,
    • and is not investigated and addressed effectively enough by the organization to make the behavior stop.
    • The hostile behavior, actions, or communication must be severe. Not only is it pervasive over time, but the hostility must seriously disrupt the employee’s work. The second form of severity occurs if the hostile work environment interferes with an employee’s career progress. For example, the employee failed to receive a promotion or a job rotation as a result of the hostile behavior.
    • It is reasonable to assume that the employer knew about the actions or behavior and did not sufficiently intervene. Consequently, the employer can be liable for the creation of a hostile work environment.

Dealing With a Hostile Work Environment

The first step an employee needs to take if he or she is experiencing a hostile work environment is to ask the offending employee to stop their behavior or communication. If an employee finds this difficult to do on his or her own, they should solicit help from a manager or Human Resources.

 

When inappropriate behavior is coming from another employee, they are your best in-house resources. They also serve as your witness to the fact that you asked the offending employee to stop the behavior.

 

You want to put the offending employee on notice that their behavior is offensive, discriminatory, inappropriate, and that you won’t tolerate the behavior. (In the majority of cases, the employee will stop the behavior. They may not have realized the degree to which you found the actions offensive.)

 

These resources will help you address a hostile work environment before the hostility escalates. You can pick between dealing with difficult peopledealing with a bully, holding a difficult conversation, and practicing conflict resolution skills.

 

They will all help you increase your skill in dealing with the coworker creating your hostile work environment. These skills and ideas may be all that you need since many bullies are spineless when confronted.

 

Especially in instances where you have reported the behavior of a manager or supervisor to the appropriate manager or HR staff member, the behavior must stop. Additionally, the reported individual may not retaliate against you as a payback for your reporting of his or her improper behavior.

 

An employee who experiences a hostile work environment, and has attempted to make the behavior stop without success, though, should go to his or her manager, employer, or Human Resources staff. The first step in getting help is to ask for help. Your employer must have the opportunity to investigate the complaint and eliminate the behavior.

 

A later hostile workplace lawsuit you institute will flounder if the employer was unaware of the situation and had not been given the opportunity to address the behavior and hostile environment. This is in your hands because, in most workplaces, hostile, offensive behavior is noticed and addressed when it is obvious or seen by many employees.

 

Employees rarely need to address the behavior on their own. When the behavior is not widely viewed or if it happens only in secret without witnesses, you must bring the hostile behavior to your employer’s attention.

Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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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.



Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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Examples of Sexual and Non-Sexual Harassment

Example of sexual harrassment in the workplace

What is considered sexual harassment at work? And how does it differ from non-sexual harassment? Sexual harassment1 in the workplace is a form of discrimination that includes any uninvited comments, conduct, or behavior regarding sex, gender, or sexual orientation.

All employees – in any position, from management to entry-level or hourly staffers – should be aware of what qualifies as workplace harassment and avoid these behaviors or report them if they occur.

Sexual vs. Non-Sexual Harassment

Even though it’s the type of harassment that is most often reported, harassment in the workplace and hiring isn’t limited to sexual harassment. Other actions regarding religion, race, age, gender, or skin color, for example, can also be considered harassment if they interfere with an employee’s success or conjure a hostile work environment2 .

© The Balance, 2018

Examples of Sexual Harassment in the Workplace

It doesn’t matter who makes the offense. It could be a manager, co-worker, or even a non-employee like a client, contractor, or vendor. If the person’s conduct creates a hostile work environment, makes it difficult for an employee to work, or interrupts an employee’s success, it is considered unlawful sexual harassment.

Sexual harassment isn’t limited to making inappropriate advances. It includes any unwelcome verbal or physical behavior that creates a hostile work environment.

Here are some examples of sexual harassment in the workplace and information on how to handle it if you have been harassed at work.

    • Sharing sexually inappropriate images or videos, such as pornography or salacious gifs, with co-workers
    • Sending suggestive letters, notes, or emails
    • Displaying inappropriate sexual images or posters in the workplace
    • Telling lewd jokes, or sharing sexual anecdotes
    • Making inappropriate sexual gestures
    • Staring in a sexually suggestive or offensive manner, or whistling
    • Making sexual comments about appearance, clothing, or body parts
    • Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person
  • Asking sexual questions, such as inquiries about someone’s sexual history or their sexual orientation
  • Making offensive comments about someone’s sexual orientation or gender identity

These are just a few examples of sexual harassment.

Bottom line: Any actions or words with a sexual connotation that interfere with an employee’s ability to work or create an uncomfortable atmosphere are considered sexual harassment.

It’s also worth noting that victims of the harassment may not be just the target of the offense, but anyone who is affected by the inappropriate behavior.

That is, a co-worker standing nearby when inappropriate sexual comments are uttered may be affected, even if the comments aren’t directed toward them.

Examples of Non-Sexual Harassment in the Workplace

Behavior such as making racist or negative comments can also be construed as workplace harassment. Offensive gestures, drawings, or clothing also constitute harassment.

You should address this sort of workplace bullying in the same way that you would sexual harassment – by reporting it to human resources and, if nothing is done, by filing a harassment claim with the EEOC.

Instances of workplace harassment include discrimination such as:

  • Making negative comments about an employee’s personal religious beliefs, or trying to convert them to a certain religious ideology
  • Using racist slang, phrases, or nicknames
  • Making remarks about an individual’s skin color or other ethnic traits
  • Displaying racist drawings, or posters that might be offensive to a particular group
  • Making offensive gestures
  • Making offensive reference to an individual’s mental or physical disability
  • Sharing inappropriate images, videos, emails, letters, or notes
  • Offensively talking about negative racial, ethnic, or religious stereotypes
  • Making derogatory age-related comments
  • Wearing clothing that could be offensive to a particular ethnic group

Non-sexual harassment isn’t limited to these examples. Non-sexual harassment includes any comment, action, or type of behavior that is threatening, insulting, intimidating, or discriminatory and upsets the workplace environment.

How to Handle Workplace Harassment

Should you feel like you have been harmed by sexual or non-sexual harassment in the workplace, there are steps you can take to file a harassment claim with the Equal Employment Opportunity Commission (EEOC).

In order to successfully file such a claim, however, you have to be able to prove that a) your employer tried to correct the harassing behavior, and b) that the employee responsible for the harassment refused to cease and desist.

Thus, it is vital that you first report the harassment to your employer’s human resources department as well as taking detailed notes of the dates, times, and nature of the incidents. If attempts to remediate the situation fail, you must file your claim with the EEOC within 180 days by mail, in person, or by calling 800-669-4000.

It’s Important to Know the Rules

When you’re job searching, it’s important to know that rules apply as to what employers can and cannot ask, related to some of the harassment examples listed above.

During an interview, employers should not be asking about your race, gender, religion, marital status, age, disabilities, ethnic background, country of origin, sexual preferences, or age. If this happens, it should serve as a red flag that you may not want to pursue your candidacy with this employer.

The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law. 



Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Prevent Employment Discrimination and Lawsuits

In employment discrimination lawsuits, the business always loses, even if that loss is a diminished public reputation. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success.

Retaliation Discrimination Lawsuits Are Most Common

Statistics from the Equal Employment Opportunity Commission (EEOC) show claims regarding retaliation discrimination topped the list again in 2018. Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.

Here’s the complete breakdown from EEOC from 2018 complaints:

  • Retaliation: 39,469 (51.6% of all charges filed). Historically, retaliation complaints are the most common ones filed with the EEOC.
  • Sex: 24,655 (32.3%). Employment discrimination by gender rose to the second most commonly filed complaint.
  • Disability: 24,605 (32.2%)
  • Race: 24,600 (32.2%)
  • Age: 16,911 (22.1%)
  • National Origin: 7,106 (9.3%)
  • Color: 3,166 (4.1%)
  • Religion: 2,859 (3.7%)
  • Equal Pay Act: 1,066 (1.4%)
  • Genetic Information: 220 (.3%)

Sexual Harassment Charges Increase

The agency also received 7,609 sexual harassment charges—a 13.6% increase from 2017 and it attributes the increase to the #metoo movement pushing harassment into the spotlight. The EEOC reports obtaining $56.6 million in monetary benefits for victims of sexual harassment in 2017.

Rising Costs of EEOC Suits Expensive for Employers

From an employer’s perspective, settlement costs to resolve an EEOC claim fade in the face of additional, often unrecorded, costs to the employer’s organization, says Shanti Atkins, an ethics and compliance specialist. These include the costs of:

    • Distraction: The organization’s staff will spend months gathering and preparing documents while an internal investigation is conducted, and time is invested in fighting the claim.
    • DepressionEmployee morale will suffer under the constant pressure of a lawsuit.
    • Blemished reputation: An employer known as an employer of choice for recruiting and retaining desirable employees—whether found guilty or innocent—may be under a cloud.
    • Actual attorneys’ fees: These can cost as much or more than an eventual settlement, if the employer is found guilty.
Jury awards are expensive for employers. Class action lawsuits, which are also increasing, generally result in lower per-claimant awards but can cost an employer millions of dollars in cash and untold millions in unattributed fallout.

Employees who do not believe their complaint was adequately addressed by their employer during a normal internal complaint process—or in situations where the harassment or discrimination behavior continues—may file a claim with the EEOC. Only a tiny fraction of charges filed with the EEOC result in a lawsuit, says diversity communications consultant Gail Zoppo. So, even if the EEOC issues a “right to sue,” to an employee, the individual may have to invest significant resources in legal counsel, and only 1% of employees win their case.

How Employers Can Prevent Employment Discrimination

Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of a lawsuit before taking a few simple steps that could have prevented years of pain.

Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits.

Further, their employment discrimination policies, preventative measures, and practices to create a healthy workplace culture, can work in their favor. The employer may escape significant damage if they demonstrate these actions:

  • Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment, or retaliation to the company. Preferably, employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
  • The policy should communicate how an employee complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders.
  • The policy should discuss the nature of retaliation, and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
  • Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur.
  • Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment, or retaliation situations.
  • Employment discrimination, harassment, retaliation, bullying, anger, and potential violence should all be addressed together as unacceptable in your workplace. Effective training must teach that all of these concepts and behaviors integrate, intersect, and are woven together to create a supportive, nondiscriminatory, employee-friendly work environment.
  • Mandatory employee training should address many of the same issues as the managers’ training relative to employment discrimination. Cost-effective online training solutions are available for portions of this employee training. All employees must sign off on a training record to indicate they are aware of and understand the employer’s policy and complaint process.
  • Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination—and all forms of harassment and retaliation—should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
  • Act in a timely manner. Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint all the way through to appeal, when necessary.

As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, and employee preventative training. Your good faith efforts to prevent employment discrimination, harassment and retaliation may serve you well—increasingly important in the litigious future.



Law Office of Bryan A. Chapman

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Bryan A. Chapman, Esquire

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bchapman@baclaw.com

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Discrimination Against Women in the Workplace: Everything You Need to Know

Source: UpCounsel

Discrimination against women in the workplace is when an employer treats a female employee less favorably than the employer would a male.

Discrimination Against Women in the Workplace?

Discrimination against women in the workplace is when an employer treats a female employee less favorably than the employer would a male employee specifically because of the employee’s gender.

Examples of discrimination against women in the workplace are when a woman is rejected for employment, when a woman loses a promotion to a less-qualified male employee, or when a woman is harmed in any way because of her gender.

Workplace Discrimination Definition

Workplace discrimination is when an employer treats either a male or female employee differently specifically because of his or her gender. Workplace discrimination is more commonly called gender discrimination or sexual discrimination.

Gender Discrimination Definition

The terms “sex” and “gender” are often used interchangeably in everyday language. But they actually have very different meanings. The term “sex” is based on anatomical identity. Social scientists use it to identify a person as male or female. The term “gender” is a cultural term for the characteristics that are generally associated with maleness or femaleness. Discrimination can be based on sex, gender, or both sex and gender. But no matter which way it is labeled, discrimination is illegal.

Federal Laws Prohibiting Workplace Discrimination

  • Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination because of race, color, religion, sex, and national original. Title VII applies to all private employers, state and local governments, and education institutions that employ 15 or more individuals.
  • Rehabilitation Act of 1973. This law essentially applies the standards of Title VII to the federal government as an employer.
  • Equal Pay Act (EPA). The EPA prohibits sex-based pay discrimination between men and women who perform under similar working conditions. The EPA applies to all employers covered by the federal Fair Labor Standards Act (FLSA).
  • Pregnancy Discrimination Act (PDA). The PDA, a part of Title VII, prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions.
  • Family and Medical Leave Act (FMLA). The FMLA prohibits discrimination against pregnant women and parents as well as employees with serious health conditions. In 2008, two new types of FMLA leave were created, which gives job-protected leave for family of the armed services members.

Workplace Discrimination: Promotions

In the past, qualified female employees have often been prevented from advancing to management positions in companies because of their gender. This term often used for this artificial barrier is “glass ceiling.” If this is the case, it is considered workplace discrimination against women and protected by Title VII.

Workplace Discrimination: Sexual Harassment

When a person in an authority role asks for sexual favors from an employee in exchange for a workplace benefit, it is called Quid pro quo sexual harassment. Some examples of a workplace benefit include a promotion, an increase in pay, and protection from being laid off.

It is also considered sexual harassment when a male co-worker or authority figure tells inappropriate jokes, makes threats, or exhibits any form of behavior that could intimidate a female employee or affect her ability to work. This type of sexual harassment falls under the label of “Hostile Work Environment.”

Workplace Discrimination: Breast-Feeding

Currently, there are no federal laws that protect nursing mothers. But some states have laws that make it illegal to discriminate against breast-feeding women. Some states take it a step further and require employers to give proper facilities for breast-feeding in the workplace.

Workplace Discrimination: Enforcement of the Law

The federal government agency responsible for investigating workplace discrimination complaints in workplaces of 15 or more employees is the Equal Employment Opportunity Commission (EEOC). In addition to federal laws against discrimination, there are also state laws against discrimination in most states. These states have their own agencies to enforce the laws.

Legal relief for victims of workplace discrimination may include:

  • Reinstatement
  • Back pay
  • Promotion
  • Compensatory damages (emotional pain and suffering)
  • Punitive damages (damages to punish the employer)
  • Payment of attorney and expert witness fees
  • Payment of court costs

To reduce the chance that discrimination will occur again, an employer may be legally required to take corrective action against the source of the discrimination and to stop the discriminatory practice involved in the case.



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Employers con sexual harassment victims by means of a “see no evil, hear no evil” policy.

Particularly, in the case of co-worker sexual harassment, an employer can only be found liable for sexual harassment if management is aware that sexual harassment is occurring in the workplace.  As a result, some employers have adopted a “see no evil, hear no evil” strategy.

Management may be fully aware that sexual harassment is occurring, but deliberately pretend that is is not occurring in order to avoid liability.  Management may even discourage victims of sexual harassment from complaining.  Spicer v. Com. of Va., Dept. of Corrections, 66 F. 3d 705, 710 (4th Cir. 1995) (We reiterated this requirement in Swentek, holding that an employer is liable only “where it had `actual or constructive knowledge of the existence of a sexually hostile work environment and took no prompt and adequate remedial action.'” 830 F.2d at 558 (quoting Katz) (emphasis added).  Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct.); Jackson v. Quanex Corp., 191 F. 3d 647, 664 (6th Cir. 1999)

“An employer cannot avoid Title VII liability for coworker harassment by adopting a “see no evil, hear no evil” strategy.” Ocheltree v. Scollon Productions, Inc., 335 F. 3d 325, 334 (4th Cir. 2003)  “Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)

Therefore, victims of workplace sexual harassment should document each incident of harassment in real time.  Documentation can be evidence of sexual harassment if a lawsuit is filed.  Victims of workplace sexual harassment should seek corroboration from other victims of sexual harassment; there is strength in numbers.  Finally, victims of workplace sexual harassment must complaint to management and/or government entities, such as, the Equal Employment Opportunity Commission (EEOC).

 

Bryan A. Chapman, Esquire

www.baclaw.com

bchapman@baclaw.com

202 508-1499

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