Coronavirus: 10 Steps US Employers Should Take to Maintain a Safe Workplace in the Face of a Public Health Emergency

Authors

  • Andrew S. Rosenman
  • Ruth Zadikany
  • Roxanne M. Wilson

The coronavirus, also known as COVID-19, is spreading rapidly across the globe and throughout the United States. Accordingly, employers should keep track of rapidly emerging developments and consider taking the 10 steps discussed below in order to maintain a safe workplace and to reassure their employees that management is appropriately monitoring and responding to the situation. Having a carefully coordinated and well-thought-out approach to the coronavirus should help mitigate risks for employers while reducing many employee concerns.

1. Educate Your Workforce and Communicate Regularly with Employees

Employers should communicate openly and often with the workforce so that employees have information they need to help keep themselves educated and updated about the coronavirus. As we discuss throughout this Legal Update, communicating regularly with your employees regarding company policies and procedures related to good hygiene, business travel, quarantines, working remotely, safety precautions and screening visitors is an effective method to demonstrate to your workforce that you are monitoring the situation and working to keep everyone healthy and safe. Soliciting direct input and suggestions from your employees, particularly on hygiene issues in your specific workplace, may help further reduce the risks of transmission of the virus.

As part of those communications, we recommend that employers provide employees with additional resources so that they may learn more about the situation as it develops. For example, the Centers for Disease Control (“CDC”) has a detailed website, presently available in English, Spanish and simplified Chinese, that provides up-to-date information about the coronavirus. The CDC’s website includes details about, among other things, coronavirus symptoms, prevention and treatment, geographic updates, and frequently asked questions. The CDC’s website also includes links to posters that employers can download and place in restrooms and other areas of the workplace where they are likely to be seen. The World Health Organization (“WHO”) similarly has developed a website with useful materials for employers and employees.

In addition, the Occupational Safety and Health Administration (“OSHA”), which is tasked with ensuring safe working conditions for employees by setting and enforcing workplace standards and providing training and education, has provided guidance and information about the coronavirus on its website.

Regular communication helps not only to educate employees on best practices in the workplace but also to dispel myths and unfounded rumors, about the coronavirus itself and its potential impact on the workplace. In addition, employers that do not communicate with their employees may be perceived, rightly or wrongly, as ill-prepared to handle the outbreak and uncaring about the well-being of their employees. Such employers may also experience a greater number of potentially unnecessary employee absences.

In addition to providing regular communications and reminders to employees, employers should develop mechanisms that will allow them to communicate with all employees on an emergency basis (e.g., in the event of an unanticipated office or building shutdown). Employers should communicate in as many ways as possible, depending on their technical proficiency (e.g., global email, voicemail, text, phone tree, etc.).

2. Monitor Developments on a Daily Basis

The coronavirus situation is highly fluid. Both the CDC and WHO frequently update the information on coronavirus on their websites. Accordingly, employers should check these websites often as the outbreak continues to evolve. The CDC has a “latest updates” link on its website for the coronavirus. Similarly, the WHO has a “rolling updates” section on its website. For the benefit of US employers, the CDC also has developed interim guidance for businesses and employers to plan for and respond to issues related to the coronavirus. The CDC’s interim guidance provides a series of recommended strategies for employers to implement now, many of which we discuss below.

In addition to the websites and frequent updates from the CDC, WHO and OSHA, additional information may be available from state and local departments of health, as well as from the US Food and Drug Administration.

3. Appoint a Cross-Functional Coronavirus Emergency Management Team

Unlike weather-related crises, which often permit businesses to engage in some level of advance preparation, the coronavirus has the power to disrupt business operations significantly and without any warning. Employers need to be prepared to act quickly if the coronavirus enters their specific workplace. Accordingly, employers should appoint a central point of contact and cross-functional emergency management team (“EMT”) to address all of the issues arising from the coronavirus outbreak in the workplace, including employee health and safety; internal and external messaging; medical and sick leaves; workers’ compensation; short-term disability; the interactive process and potential accommodations under the ADA; confidentiality and privacy protections; technology support; and legal compliance. Where feasible, the EMT likely should include, at minimum, representatives of the HR, communications, IT, and legal departments.

It is critical that the EMT be given sufficient authority (or access to authority) to act nimbly and decisively in the face of quickly changing information and circumstances, while possessing the flexibility to make adjustments as time goes on and business needs may require.

In addition to operational planning and emergency preparedness, the EMT should be tasked with responsibility for monitoring the news and key websites on a daily basis for reliable information in this highly fluid situation.

4. Reinforce Good Hygiene Practices and Take Related Safety Precautions

The “General Duty” clause of the Occupational Safety and Health Act generally requires employers to provide employees with a safe and healthy workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm, and to comply with occupational safety and health standards and rules. Accordingly, employers should remind employees to take basic preventive measures and safety precautions that may help to reduce the risk of contracting the coronavirus or spreading it in the workplace, including:

  • frequently washing their hands thoroughly with soap and water for at least 20 seconds or an alcohol-based hand sanitizer that contains at least 60 percent alcohol;
  • avoiding touching their eyes, nose and mouth;
  • covering sneezes or coughs with tissues, if possible, or else with a sleeve or shoulder;
  • avoiding close contact with people who are sick;
  • staying home when sick; and
  • cleaning and disinfecting frequently touched surfaces and objects.

To facilitate these practices, employers should ensure that they maintain adequate supplies in the workplace, including tissues, soap, alcohol-based hand sanitizer that contains at least 60 percent alcohol, and hand wipes. The CDC has also recommended that employers provide no-touch disposal receptacles for use by employees, place no-touch sanitizer dispensers in multiple locations or in conference rooms to encourage good hand hygiene, and provide employees with disposable wipes so that they can wipe down commonly used surfaces before each use.

Encouraging good hygiene practices extends beyond employees themselves. Employers that rely on staffing services for contingent or temporary employees should ensure that those services are taking appropriate precautions for workers sent to the employers’ premises.

Employers should also review their cleaning operations to ensure that frequently touched surfaces, such as door handles, elevator buttons, phones, keyboards, workstations and countertops are routinely disinfected. Depending on the work environment, employers may need to coordinate this effort with their landlords or tenants. Employers should review their leases to understand their duties and obligations in this regard. It also is important to ensure that cleaning personnel are properly trained and equipped to disinfect frequently touched areas and that they have appropriate personal protective equipment to avoid contracting the coronavirus while cleaning. If the employer learns that an infected employee or other person has been in the workplace, the employer should also consider contracting with specialists for additional deep-cleaning and sanitizing services to prevent the spread of the virus.

5. Actively Encourage Sick Employees to Stay Home and Immediately Send Sick Employees Home

Consistent with CDC guidance, employers should actively encourage employees to stay home if they are sick or have been exposed to someone who is sick, and to remain home until they are free of a fever, signs of a fever or other symptoms for at least 24 hours. This is especially important for employees who have symptoms of acute respiratory illness. In fact, CDC guidance specifically recommends that employers send home immediately any employees who appear to have symptoms of an acute respiratory illness.

As a practical matter, employers who show flexibility with sick leave and attendance policies may facilitate more transparency by employees about their health. This, in turn, can help reduce the risk of exposure among the broader workforce. For example, employees who have exhausted their sick leave may be reluctant to disclose symptoms of coronavirus and/or miss work for fear that missing additional time will jeopardize their employment. Further, because medical providers may be busier than usual as a result of the coronavirus, employers may desire to be more flexible with employees about when employees must provide certification of a medical condition that renders them unable to work.

Employers should understand that implementing precautionary steps in the workplace has its limits. For example, some employers may wish to take the temperatures of employees because an elevated temperature is one common indicator of the coronavirus. The Americans with Disabilities Act (“ADA”), which regulates employer disability-related inquiries and medical examinations, generally prohibits covered employers from requiring medical examinations of employees unless they are job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that (i) an employee’s ability to perform essential job functions will be impaired by the medical condition or (ii) an employee will pose a direct threat to others due to the medical condition.

In 2009, in conjunction with the H1N1 flu pandemic, the Equal Employment Opportunity Commission (“EEOC”) issued a technical assistance document on how employers should handle the workplace implications of that pandemic in conjunction with the requirements of the ADA. The EEOC emphasized that whether a pandemic influenza rises to the level of a “direct threat” (such that it cannot be eliminated or reduced by a reasonable accommodation) depends on the severity of the illness. At the time, the EEOC added that if the CDC or state or local public health authorities determine that a pandemic influenza is significantly severe, it could rise to the level of a direct threat.

To date, the CDC has made no such determination of a pandemic with respect to the coronavirus. Even if the CDC ultimately makes such a determination, we strongly recommend that employers discuss any contemplated mandatory medical tests or examinations of employees, including temperature-taking, with their counsel before adopting or implementing them.

Importantly, if exposure to the coronavirus occurs in the course and scope of the employee’s work, it may constitute an occupational hazard under the federal Occupational Safety and Health Act. OSHA regulations may also be implicated if the employer uses enhanced sanitation techniques with stronger chemical products during the outbreak.

6. Suspend or Limit Business Travel

Employers should consider prohibiting or strictly limiting business travel to countries and regions that pose a high risk of transmission of the coronavirus. In that regard, the CDC has established geographic risk stratification criteria in order to issue travel health notices and guidance for public health management decisions about potential travel-related exposure to the coronavirus. The CDC’s three stratification levels are based on a number of factors such as the size, geographic distribution and epidemiology of the outbreak.

Countries designated by the CDC as “Level 3” involve widespread sustained transmission, and currently include China, Iran, Italy and South Korea. The CDC recommends that non-essential travel to Level 3 countries should be avoided, and the US government has imposed entry restrictions from certain Level 3 countries. Accordingly, employers should immediately suspend non-essential business travel to Level 3 countries and should also require anyone who travels to a Level 3 country to remain out of the office for a period of at least 14 days following their return, even if an employee has no symptoms of the virus.

The CDC designates as “Level 2” those countries in which there is sustained community transmission of the coronavirus; Japan is presently the only Level 2 country. The CDC has recommended that older adults and those who have chronic medical conditions should consider postponing travel to Level 2 countries. Employers should bear these points in mind when determining whether to restrict business travel to Level 2 countries.1 The CDC’s list of countries within its risk stratification is likely to grow as the coronavirus continues to spread globally.

Employers should also consider whether to change their travel policies regarding places that are not on the CDC’s list and how any such changes may impact the efficacy of their business operations. There is no “one-size-fits-all” approach, as every employer has different operational needs. But as the coronavirus continues to spread within the United States, some employers may decide to suspend all non-essential business travel both outside and within the United States, at least for a limited period of time, or permit employees to opt out of non-essential business travel. Employers should also give serious consideration to cancelling, postponing or rescheduling company meetings or group events (e.g., retreats, sales meetings, trade shows, etc.) to minimize the risk of large numbers of employees coming into contact with the virus at one time. In some instances, videoconferencing may be a reasonable alternative to in-person meetings.

In the event employees refuse to travel for work, employers should consult with counsel before taking any steps, particularly if a group of employees jointly makes such a request, as the employer’s response should be tailored to the specific circumstances.

Importantly, employers cannot prohibit employees from personal travel, even to areas known to be affected by the coronavirus. However, employers should communicate with employees regarding their travel plans before they depart and should advise them of the implications of such travel. For example, it is reasonable for employers to ask employees where they plan to travel and to advise employees whether, based on the currently available information, they will need to self-quarantine for 14 days upon returning. Employers should also advise employees to check the CDC’s Travelers’ Health Notices for the latest guidance and recommendations for travel to each country. . Further, employers should ensure that employees understand that if they become sick while traveling or upon their return, they should contact their healthcare provider and their supervisor immediately. Employers should apply their travel policies (and all other policies) uniformly and in a non-discriminatory manner so that there is no disparate treatment of employees in any particular protected classes. For example, employers cannot single out employees of a particular national origin or race. Employers should also closely monitor any reports of alleged disparate treatment of their employees.

7. Quarantine Potentially Exposed Employees, Even if They Do Not Exhibit Symptoms

Both the federal government and some state and local governments have placed restrictions on entry to the United States from certain countries. Specifically, for individuals returning from certain countries designated by the CDC as Level 3, employees must be quarantined for a period of 14 days, the incubation period for the coronavirus. Employers may want to consider following this practice with respect to Level 2 countries as well, in order to slow the potential spread of the virus. Employers should require that if any employees become ill during a quarantine period, they should seek medical care and may return to work only after they have received appropriate clearance from their medical provider.

When deciding whether to quarantine any employees and when dealing with employees required by governmental authorities to be quarantined, employers may need to address how to compensate such employees, particularly those who cannot work remotely during the quarantine period. Generally, subject to any contractual obligations that an employer may have, employers are permitted to require employees to use paid time off, provided that they do not work during that time.

However, if the employer is dealing with unionized employees, there may be an obligation to negotiate with the union regarding quarantine policies because they may alter the terms and conditions of employment, which include wages and hours of work. Depending on the terms of the collective bargaining agreement, the employer may have the right to send an employee home but may still have to pay the employee based on the union-rights clause.

If the employer is dealing with overseas employees, the employer will need to comply with the laws of that country. If employees are quarantined abroad, the employer should explore the possibility of permitting them to work remotely. If the employer has foreign national employees quarantined outside the country, it will not impact their obligation to maintain lawful immigration status but may trigger other immigration issues.

As the coronavirus spreads, employers may also encounter an increasing number of employees who wish to self-quarantine or self-isolate to protect themselves from workplace exposure to the virus. To the extent employers have the flexibility to allow employees who wish to self-quarantine to do so, that may go a long way to show support for employees in an obviously stressful and evolving situation; however, not all employers have this flexibility, and they also have to focus on keeping their businesses operating. Notably, employees generally are not entitled to FMLA, sick leave, or other reasonable accommodation leave under the ADA if they wish to stay at home to avoid getting sick if there is no indication of any imminent danger of being exposed to the virus.

8. Consider Having Non-Essential Employees Work Remotely

In the digital age, it may be possible for employers to encourage many employees whose presence in the workplace is not essential to work remotely. Employers should consider the security risks of allowing employees to work remotely and should also take steps to provide IT support and equipment for employees who may be able to work remotely but have not historically done so. Employers should also ensure that they have a mechanism in place to ensure that such employees are paid for all hours worked, particularly with respect to nonexempt employees, and that they are provided or reimbursed for all necessary work-related expenses in accordance with applicable laws.

Employers may well see increases in absenteeism in certain locations, particularly if schools remain closed for periods of time and employees have young children. Employers should consider whether cross-training essential job functions among employees may help to alleviate the effects of increased absenteeism.

Importantly, employers may not base work-from-home and/or quarantine decisions on an employee’s national origin. Decisions should be applicable to all similarly situated employees based on their potential exposure to the coronavirus.

9. Be Mindful of the Interplay Between Sick Leave Laws and Policies, the FMLA, ADA, HIPAA and Workers’ Compensation

When dealing with the coronavirus, as with any instance of employee illness, employers should keep in mind that many different laws and policies may be implicated. If an employee communicates that he or she or an immediate family member has been diagnosed with the coronavirus, the employer generally should follow its existing sick leave, medical and other leave and workers’ compensation policies. For example, the Family and Medical Leave Act (“FMLA”) and state counterparts may be triggered if the virus becomes a serious health condition. Under many state and local sick leave laws, such employees must be permitted to use accrued paid sick leave. In addition, if the illness arises out of or in the course of employment, workers’ compensation benefits may be triggered.

A potentially thorny issue arises with regard to employees who may not have been diagnosed with the coronavirus but who either are exhibiting symptoms that could also be associated with a cold or the flu, or who are asymptomatic but under self-quarantine due to travel to a Level 3 country or exposure to someone with the virus. In those circumstances, particularly where no public health emergency has been declared, the employee is likely not entitled to unpaid leave under the FMLA or paid sick leave. Employers can require employees to use vacation or accrued paid time off for the absences. Importantly, to the extent employers require employees to take time off, they must ensure that employees are not working. This can be challenging, particularly with exempt employees, who often have access to their work emails and may respond to emails, answer calls, or perform other work during the workweek, as they are then entitled to their salary for the week. Accordingly, employers should clearly state their policies regarding work-from-home in these situations. As discussed above, in order to facilitate transparency by employees about their health conditions, employers should consider whether they nonetheless want to pay employees for mandated time off without requiring employees to use their accrued time off.

Employers also should be mindful of their obligations under the ADA and related state law counterparts. While the coronavirus is, for many infected individuals, a temporary and mild condition that may not progress to the level of a disability, the ADA prohibits employers from discriminating against employees whom the employer perceives as disabled. It also is possible that employees infected with the coronavirus may develop more serious problems that constitute actual disabilities. If so, employers will need to consider the required “interactive process” under the ADA and whether reasonable accommodations, such as an additional leave of absence, might enable the employees to return to work or otherwise perform the essential functions of their jobs, as well as any corresponding undue hardships.

If an employee misses work for his or her own illness due to the coronavirus, employers may (and arguably should) require a medical certification from the employee’s physician before permitting the employee to return to work.

Further, confidentiality should be maintained with respect to employees who have or may have the coronavirus, consistent with the privacy protections of the Health Insurance Portability and Accountability Act (“HIPAA”). Employers should not disclose the name of any infected employee(s) to their co-workers or any information regarding their medical condition.

10. Screen Visitors to the Workplace

Employers have a duty to protect visitors to the workplace from hazards that are not open and obvious. If an employer is aware of known cases of coronavirus infection among its employees, the employer may have an obligation to notify visitors. If the employer is also a landlord, the employer may have additional obligations to notify tenants of known infection events.

By the same token, visitors to the workplace, including vendors and delivery persons, should be screened for exposure to or symptoms of coronavirus and should be excluded from the workplace if they exhibit symptoms consistent with the coronavirus.

Summary

The coronavirus continues to expand globally and rapidly, with new developments and outbreaks happening almost daily. Accordingly, it is imperative for employers to communicate with the workforce, take health and safety precautions, monitor information about the virus, and plan and prepare for emergencies.

For employers who do not already have one, we recommend that they adopt a sickness prevention and communicable diseases policy, as the coronavirus is but one of a long list of communicable diseases, such as measles, Severe Acute Respiratory Syndrome (“SARS”), and tuberculosis. The policy should include notification to employees of the types of communicable diseases covered by the policy, a statement that the employer will not discriminate against any job applicant or employee based on the individual having a communicable disease, and a statement that the employer will comply with statutes and regulations relating to the employee’s privacy. Mayer Brown has worked with a number of clients in developing such policies.

We also recommend that all employers consult with their labor and employment counsel about any legal issues that relate to the coronavirus and its impact on the workplace.


1 The CDC has not explicitly suggested travel restrictions related to Level 1, its lowest level of risk stratification. Hong Kong is the only location presently designated as Level 1.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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What Is Harassment?

Understanding and Addressing Harassment in the Workplace

harassment at work

Workplace harassment is unwelcome conduct from a boss, coworker, group of coworkers, vendor, or customer whose actions, communication, or behavior mocks, demeans, puts down, disparages, or ridicules an employee. Physical assaults, threats, and intimidation are severe forms of harassment and bullying.

Harassment also may include offensive jokes, name-calling, offensive nicknames, pornographic images on a laptop, and offensive pictures or objects. Interfering with an employee’s ability to do his or her work also is considered to be a form of harassment.

Employees can experience harassment when they are not the target of the harasser because of the negative work environment that can develop because of the harassment.

The Details

In all or some parts of the United States, demeaning another individual regarding a protected classification is illegal and discriminatory. As a form of employment discrimination, harassment can violate Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA).

Protected classifications of employees, depending on your state, can include:

  • Age
  • Race
  • Religion
  • National Origin
  • Sex or Gender
  • Gender Identity
  • Sexual Orientation
  • Physical or Mental Disability
  • Color
  • Pregnancy
  • Genetic Information
  • Weight

According to the U.S. Equal Employment Opportunity Commission, harassment becomes illegal when:

  • Putting up with offensive and unwanted actions, communication, or behavior becomes a condition of continued employment, or
  • The behavior is severe and pervasive enough to create a work environment that any reasonable individual would find intimidating, hostile, or abusive.

Harassment against individuals also is prohibited as retaliation for filing a discrimination charge, participating in a harassment investigation or lawsuit under these laws. The bottom line is that employees have a right to challenge employment practices that they believe constitute harassment.

Demeaning an employee for any aspect of their parental status, appearance, weight, habits, accent, or beliefs can be considered harassment and can add to a claim about a hostile work environment.

Employers avoid harassment charges when they create expectations in their workplaces that all employees will treat each other with respect, collegiality, fairness, honesty, and integrity.

How rampant is harassment?

There is no way to know for certain just how rampant various types of harassment are in the workplace. Undoubtedly, many go unreported to employers or the Equal Employment Opportunity Commission (EEOC). Others are adequately handled by employers without the need for government intervention.

The EEOC releases detailed breakdowns of workplace discrimination every year. In 2017, the EEOC handled 84,254 charges and secured more than $125 million for victims of discrimination in private, federal, state, and local government workplaces.

Specific reasons for charges being filed are detailed below in descending order. Some charges include more than one reason, so percentages add up to more than 100:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 206 (0.2 percent)

Preventing Workplace Harassment

In any case of workplace harassment, an employer’s behavior must meet a certain standard in the eyes of the law. Just posting an anti-harassment policy, while a positive step, is insufficient to prove that an employer took workplace harassment seriously.

Employers should develop policies that clearly define inappropriate actions, behavior, and communication. The workforce should be trained and educated through the use of examples, and the policy must be enforced.

If harassment is mentioned to a supervisor, observed by a supervisor, or committed by a supervisor, the employer is particularly liable if an investigation was not conducted.

A clear harassment policy gives employees the appropriate steps to take when they believe they are experiencing harassment. Companies must be able to prove that an appropriate investigation occurred and that perpetrators found guilty were suitably disciplined.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



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

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

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Proving Discrimination

Source: Workplace Fairness

 

Anti-discrimination laws make it illegal for an employer to take adverse employment action against you if you are a member of a protected class, or category of persons. Not all types of discrimination are protected under the federal anti-discrimination laws. Also, while the federal laws protect you against workplace discrimination, it is often very difficult to prove that discrimination occurred.

There are several questions that you can ask yourself to help determine whether you were discriminated against and whether you will be able to prove that the discrimination occurred.

  1. What is discrimination?
  2. What are the different types of discrimination claims that I could bring?
  3. What evidence is needed to prove my employer intentionally discriminated against me?
  4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?
  5. What if my employer denies discriminating against me?
  6. What can I do if my employer’s reason is a cover-up for discriminating against me?
  7. What evidence do I need if my employer’s seemingly neutral policy, rule or practice neutral practice had a discriminatory effect?
  8. What are the remedies if I win my discrimination case?


1. What is discrimination?

There are several federal laws that protect you from discrimination in the workplace. Each federal law makes it illegal to discriminate against certain categories of people, known as protected classes. Not all types of discrimination are protected under the federal laws. The federal anti-discrimination laws only protect you if you fall into a protected class or category. The protected classes differ under the various federal laws and are summarized below.

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex.Title VII also makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.

The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone because of age. This law protects people who are 40 or older.

The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.

Some state and local laws also make it illegal to discriminate against someone on the basis of gender identity, immigration status, language, family responsibilities, sexual orientation, and/or genetic information. See what categories your state protects against in our Filing a Discrimination Claim page.

2. What are the different types of discrimination claims that I could bring?

If you believe you have been discriminated against based on your status as a member of a protected class or category, there may be several types of claims that you could bring.

Discriminatory Intent/Treatment
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.

Disparate Impact
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule or practice rather than the intent behind it. The anti-discrimination laws make it illegal for a seemingly neutral policy, rule or practice to have a disproportionate adverse affect on members of a protected class. For example, a strength requirement might screen out disproportionate numbers of female applicants for a job, or requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect candidates of color.

Retaliation
A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard.See the Retaliation Page for more information about retaliation claims.

3. What evidence is needed to prove my employer intentionally discriminated against me?

There are two types of evidence that can be used to prove discrimination: direct and circumstantial.

Direct Evidence
Direct evidence is the best way to show that discrimination occurred. Direct evidence of discrimination includes statements by managers or supervisors that directly relate the adverse action taken against you to your protected class status.

For example, if your employer tells you that you are being let go because you are near retirement age and the company wants to go with a younger image, you have direct evidence that your protected class status was the cause of your termination. This evidence can be in the form of verbal comments or statements written in letters, memos, or notes.

Circumstantial Evidence
The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are too sophisticated and too well-trained by their own attorneys to openly express their biases and prejudices. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination.

4. I don’t have direct evidence against my employer. How do I use circumstantial evidence to show that my employer discriminated against me?

According to the “McDonnell-Douglas Test,” named for a famous Supreme Court decision, an employee must first make out at least a “prima facie case” to raise a presumption of discrimination. To make out a prima facie case of discrimination, an employee must be able to answer “yes” to the following four questions:

  • Are you a member of a protected class? For example, if you are claiming age discrimination, are you over 40? If you are claiming disability discrimination, are you disabled?
  • Were you qualified for your position? For example, if your job required you to be a licensed technician, were you licensed?
  • Did your employer take adverse action against you? Adverse action includes hiring, promotions, termination, compensation and other terms and conditions of employment.
  • Were you replaced by a person who is not in your protected class (or, in the case of age discrimination, someone substantially younger than you)? For example, if you are disabled, were you replaced by someone who is not disabled?

If you can show at least these things, the law will presume, since you were qualified for your job and then discharged in favor of someone not in your protected class, that your protected class status was the reason for the adverse action.

The “circumstantial evidence” test is flexible. It has been modified over time to avoid a mechanistic approach to discrimination cases. A person claiming discrimination who does not have direct evidence of discrimination must produce enough circumstantial evidence of discrimination to allow a jury to find that the employer acted discriminatorily. The law recognizes that persons can be discriminated against even if they were not replaced by someone outside of the protected class, for example during a reduction in force.

An employee may have sufficient circumstantial evidence to prove discrimination if they are able to answer “yes” to several of the following questions:

  • Were you treated differently than a similarly situated person who is not in your protected class?
  • Did managers or supervisors regularly make rude or derogatory comments directed at your protected class status or at all members of your class and related to work? For example, “Women don’t belong on a construction site” or “Older employees are set in their ways and make terrible managers.”
  • Are the circumstances of your treatment so unusual, egregious, unjust, or severe as to suggest discrimination?
  • Does your employer have a history of showing bias toward persons in your protected class?
  • Are there noticeably few employees of your protected class at your workplace?
  • Have you noticed that other employees of your protected class seem to be singled out for adverse treatment or are put in dead-end jobs?
  • Have you heard other employees in your protected class complain about discrimination, particularly by the supervisor or manager who took the adverse action against you?
  • Are there statistics that show favoritism towards or bias against any group?
  • Did your employer violate well-established company policy in the way it treated you?
  • Did your employer retain less qualified, non-protected employees in the same job?

If you answered, “Yes” to the four questions in the McDonnell-Douglas Test and to several of the questions above, you may be able to establish a presumption that your protected class status caused the adverse employment action.

No single piece of evidence is usually enough to prove discrimination. On the other hand, there is no “magic” amount or type of evidence that you must have to prove discrimination.

5. What if my employer denies discriminating against me?

Once you establish a presumption of discrimination, consider the reason that your company gave for terminating you.

In court, an employer has the opportunity to offer a legitimate, non-discriminatory reason for its conduct. The law only requires the employer to articulate, or state, a reason for its conduct. It does not have to prove that it is the true reason.

A company can almost always come up with some reason for the action that it took. Once the employer articulates this reason, your presumption of discrimination is gone and you will have to offer additional evidence, as discussed further below.

If the employer cannot offer a legitimate reason for your termination, the presumption remains and you have proven a case of discrimination. However, don’t count on this happening. You may think, “My employer can never come up with a good reason for firing me!” Recall, however, that your employer doesn’t need a “good” reason, just any reason besides your protected status. The vast majority of employers can do this.

6. What can I do if my employer’s reason is a cover-up for discriminating against me?

Assuming that your employer can offer any explanation at all for terminating your employment, you must next consider whether you can prove that the reason is just a pretext, a cover-up for discrimination. You may be able to prove that the employer’s stated reason is just a cover-up or pretext for discrimination if you can prove any of the following:

  • The stated reason is factually untrue
  • The stated reason is insufficient to have actually motivated your discharge
  • The stated reason is so riddled with errors that your employer could not have legitimately relied upon it
  • Your protected status is more likely to have motivated your employer than the stated reason
  • Powerful direct or circumstantial evidence of discrimination

In order to successfully challenge your employer’s denial, the law requires you to prove that your employer’s stated reason is false AND that your protected status played a role in your termination.

7. What evidence do I need if my employer’s seemingly neutral policy, rule or neutral practice had a discriminatory effect?

Proving a disparate impact case is similar to proving a discriminatory intent case. First, you must use circumstantial evidence to create a presumption that the employer’s seemingly neutral policy, rule or practice had a discriminatory effect on a protected class or category. Next, your employer then has the opportunity to show that the policy, rule or practice was a job-related business necessity. If your employer is able to show that the policy, rule or practice was a business necessity, then you can still win if you are able to prove that your employer refuses to adopt an alternative policy, rule or practice with a less discriminatory effect.

8. What are the remedies if I win my discrimination case?

  • Back Pay. Back pay is lost earnings resulting from the discrimination from the date of the discriminatory act to the date of a judgment.
  • Front Pay.Front Pay is lost future earnings resulting from the discrimination.
  • Lost Benefits. Lost benefits may include health care coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
  • Emotional Distress Damages. Emotional distress damages, which are also called pain and suffering, are mental or emotional injuries as a result of the discrimination.
  • Punitive Damages. Punitive damages are intended to punish the employer for particularly egregious conduct.
  • Attorneys’ Fees. In addition to the damages you can recover for your injuries, you can also win an award of attorneys fees, expert witness fees, and court costs.

 

This selection was originally excerpted from Job Rights and Survival Strategies by Paul H. Tobias and Susan Sauter.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



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.



Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com



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