Discrimination and Harassment

You should not dread going to work each day. Humans spend between eight and 10 hours a day at work, and the atmosphere should be tolerable, if not enjoyable. Unfortunately, for too many people, discrimination and harassment make work a nightmare.

Discrimination and harassment are illegal in the workplace. Federal and state laws protect workers from discriminatory hiring, firing, and retention practices. Harassment is a type of discrimination that is also prohibited by law. Employers are responsible for preventing discrimination and harassment. They may be liable for policies and practices that encourage or tolerate such behavior.

Understanding discrimination and what the law requires small business owners to do is essential to keeping your workplace safe and friendly for all your workers.

Discrimination in Employment

The U.S. Equal Employment Opportunity Commission (EEOC) oversees employment discrimination and harassment claims. The EEOC defines employment discrimination as:

“Unfair or unfavorable treatment of an individual or group based on their race, color, religion, sex (including sexual orientation, gender identity, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history)."

Title VII of The Civil Rights Act of 1964 prevents discrimination against any person in the workplace based on these characteristics. Other federal laws, including the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA), protect rights that were not written in the original Civil Rights Act.

Avoiding Discrimination in the Workplace

Discrimination means unfair or disparate treatment of any person or group based on characteristics unrelated to their work performance. Business owners must create employment policies and practices that reduce workplace discrimination. Employers must follow state and federal regulations, including:

• Developing employment practices that minimize or eliminate bias in hiring

• Create policies for devising reasonable accommodations for religious practices or disabilities when requested

• Ensure you provide equal pay for equal work in all areas of your worksite, regardless of gender or age

• Create and maintain an employee handbook and training program to keep employees current on anti-discrimination laws

• Promptly address all claims of discrimination and unfair treatment

Discrimination vs. Harassment

The EEOC defines harassment as any unwelcome conduct based on the above that:

• Has become a condition of continued employment (quid pro quo)

• Has become severe or pervasive enough to create a hostile work environment

• Is retaliatory against a worker for reporting any workplace violation (such as OSHA or EEOC violation)

Harassment must be a pattern of serious, continuous behavior directed at one person by another or by a group. A single act or minor incident is not harassment. Nor is a casual comment not directed at any person.

Harassment can take place between:

• Two co-workers
• A worker and their supervisor
• A supervisor or worker in another area
• A non-employee such as a delivery driver

Anyone affected by the harassing conduct can be a victim. Unlawful harassment need not result in economic harm or termination of the victim.

Harassment can include, but is not limited to:

• Offensive jokes

• Slurs, epithets, name-calling

• Insults or put-downs

• Ridicule or mockery, whether directed at work performance or not

• Offensive objects, pictures, or graffiti

• Physical threats, assaults, or intimidation

• Physical or other interference with work performance, such as altering time cards

A small business employer may find it difficult to intervene between employees if there is a harassment allegation. Failing to do so can leave the employer open to charges of harassment as well. Protecting employees is the best way to prevent charges from coming back on the employer.

Sexual Harassment

Sexual harassment is a subset of discrimination and harassment. Sexual harassment no longer involves female employees targeted by male employees. Male and female workers can be victims and abusers. Sexual harassment can also include general derogatory or hostile comments about a gender or individual. I hate women" can be harassment if repeated after someone asks the speaker to stop.

Business owners must handle sexual harassment claims carefully. The victim and the alleged harasser have legal rights. If your business has a human resources department, it should investigate the claim. Otherwise, you should consult the EEOC or an employment law attorney on the best way to proceed.

You should have a sexual harassment policy defining sexual harassment in the workplace, your reporting policy, and disciplinary steps. Make sure your policies and procedures are clear to all employees before you have any issues. The best protections are the ones you never need to use.

Get a Lawyer's Help

If you need more help, a lawyer in your area can give you the legal help you need. Find one with our attorney directory so you can protect yourself and your employees.