Posted by: kevensteinberg
Blog, Employment Law
Discrimination and harassment in the workplace have come to the front of media attention with recent allegations about the toxic environment at the Ellen Degeneres Show. The experiences of employees at the Ellen Degeneres Show are not uncommon in workplaces at large. In fact, harassment and discrimination in the workplace are more common than we often realize. A 2019 survey conducted by Glassdoor revealed that “61 percent, or about three in five U.S. employees have witnessed or experienced discrimination based on age, race, gender, or LGBTQ identity in the workplace.”
The good news is there are laws in place to protect workers from discrimination and harassment. And you can be proactive in implementing anti-harassment and non-discrimination policies in your workplace to further protect employees and cultivate an inclusive and hospitable work environment.
Common Examples of Discrimination and Harassment in the Workplace
In order to create effective anti-harassment and non-discrimation policies and procedures, you need to know what discrimination and harassment look like in a workplace.
Title VII of the Civil Rights Act of 1964 provides the basis for determining what constitutes discrimination in the workplace. Title VII makes it illegal for employers with 15 or more employees to discriminate against a person based on their race, color, religion, sex, or nation origin. Other laws extend these protections further. For example, the Equal Pay Act of 1963 prohibits wage discrimination based on gender. And the California Fair Employment and Housing Act (FEHA) expands the list of protections to defend individuals based on age, mental or physical disability, sexual orientation, gender identity and expression, medical conditions, marital status, and military or veteran status.
These laws make it clear that discrimination in the workplace is any unfair treatment of an employee or job applicant because of their sex, age, race, or any other protected characteristic. Common examples of workplace discrimination include:
- Retaliation discrimination, which includes terminating or imposing negative consequences on an employee for making a complaint about harassment, a wage disparity, or other form of unfair treatment.
- Refusing to make changes to office infrastructure and practices to accommodate an employee who uses a wheelchair or other differently-abled individuals. This can lead to simply not hiring, promoting, or giving certain tasks to people with certain disabilities.
- Assuming that employees over a certain age aren’t innovative and so are unable to contribute fresh ideas to the team or project because of alleged generational differences. Or basing promotions and new hires on the idea that people over a certain age won’t be able to keep up with new technologies or younger workers.
- Hiring a “token” person of color to give the appearance of diversity, but not providing promotions, raises, or other opportunities to that individual. Rejecting applicants based on race or making assumptions about the abilities of potential applicants or current employees based on racial stereotypes.
- Sex-based discrimination, including sexual orientation discrimination, such as paying a man a higher wage than a woman for the same job, passing an individual over for a promotion because of their gender identity or sexual orientation, or assigning an individual extra responsibilities unrelated to their job based on gender stereotypes, such as “housework” around the office.
Discrimination in the workplace typically involves official actions where the offender is discriminating in the performance of their job, like in these examples. Harassment is a type of discrimination, but it looks a little different in the workplace. Harassment is typically expressed through interpersonal relationships that create a hostile work environment. Common examples of harassment include:
- Sexual harassment, such as sharing sexually explicit images or videos with coworkers; telling obscene jokes or sharing emails, social media posts, text messages with obscene material or jokes; making inappropriate gestures; whistling suggestively; making sexual comments to a coworker about their body, clothing, or appearance; unwanted or uninvited touching; telling jokes or making offensive comments about an individual’s sexual orientation or gender identity.
- Using racist slang, using unwanted nicknames, or making negative comments about ethinic stereotypes.
- Making insensitive jokes about age, race, religion, national origin, marital status, or sexual preference or otherwise demeaning a coworker based on these same issues.
- Asking unwanted or overly personal questions about an individual’s disability, or making otherwise offensive remarks in reference to them or their disability.
- Being overtly negative about an employee’s religious beliefs or practices.
What Are the Legal Consequences of Harassment and Discrimination?
Discrimination and harassment can have profound effects on the individuals involved—they may lose a job, lose benefits or a promotion they otherwise would’ve had, or they may experience decreased motivation, morale, and trust in their supervisors or coworkers and may subject themselves and their employer to legal liability. When discrimination or harassment occurs, Title VII and FEHA provide avenues for legal action to correct discrimination and make reparations for harm caused. In cases of workplace discrimination or harassment, may be required to pay attorneys’ fees, court costs, and compensatory and punitive damages to the affected individuals. Employers are also required to discontinue discriminatory practices and make efforts to correct the source of discrimination, possibly through terminating the offending party, and implement anti-discrimination policies to prevent the recurrence of discriminatory practices or behavior.
13 Anti-Harassment and Non-Discrimination Policies to Include in Your Employee Handbook
The best way to prevent harassment in your workplace is to provide proper training and education to employees and to implement policies that clarify what harassment is and procedures to help employees know how to report harassment and guide HR in responding to complaints. The following are strong examples of policies you can include in your handbook:
- A zero tolerance statement. This statement shows that the employer is committed to providing a workplace free from all harassment prohibited by Title VII and the FEHA.
- A description of sexual harassment. Include a definition of sexual harassment and provide examples.
- Definitions of other types of harassment. Describe other types of prohibited harassment and provide examples.
- Reporting procedures. This policy instructs employees on how to report any harassment they experience or witness. It should direct employees to report incidents to either a supervisor, HR, or other designated individual. This policy may also include a requirement for supervisors to report any complaints to a designated representative.
- Statement against retaliation. This policy should state that employees will not be punished for reporting harassment or for participating in a harassment investigation.
- An explanation of investigation procedures. Describe the steps the employer will follow to investigate any harassment complaints. This should also include an assurance that the employer will protect the confidentiality of a harassment reporter to the extent possible.
- A provision for corrective action. This should include an assurance that the employer will take “immediate and appropriate corrective action” if harassment has occurred. It should also describe the consequences of violating the anti-harassment policy.
Like anti-harassment policies, a non-discrimination policy will help protect employees and create more inclusive, friendly work environments. Here are some common examples of non-discrimination provisions you might want to include in your company policy.
- A statement expressly prohibiting discrimination. This statement should include a definition of discrimination and specify the categories of individuals protected by Title VII and the FEHA. It should prohibit all employees and third parties from participating in discriminatory practices.
- A reasonable accommodations provision. State that you will provide reasonable accommodations for applicants and employees who require them for medical, religious, or other reasons covered by the FEHA.
- Reporting procedures. Explain the steps employees should follow to make a discrimination complaint and who they should report to. This should also include requirements for managers, HR, or other designated individuals who receive these reports.
- Statement against retaliation. Like with anti-harassment policies, non-discrimination policies should include a statement assuring employees that they will not experience retaliation for reporting discrimination or for participating in investigations.
- Procedures for investigating complaints. Include the process for investigating complaints. This procedure may include a specific statement about addressing complaints in a prompt and thorough manner. This procedure should also include the assurance that the confidentiality of employees who report discrimination will be protected to the extent possible.
- A policy for corrective action. Describe procedures for corrective action if discrimination has occurred. Also explain the consequences of violating the non-discrimination policy.
Strengthen Your Policies with a Strong Legal and HR Team
A human resources department bolstered with a labor and employment lawyer has a vital role in cultivating an inclusive, safe, and productive working environment. Teams such as these are directly involved in all aspects of workplace policies, procedures and laws to abide by.
Harassment and discrimination law is complex, and having experienced legal counsel on your side will help your HR team ensure your employees are fully protected and liability is minimized, if not prevented. A strong legal team is essential to review company anti-harassment and non-discrimination policies to ensure these policies are up-to-date with current law and regulations.
Solid legal counsel can also work with HR to develop trainings on sexual harassment and other discrimination prevention. Legal counsel can help determine appropriate language and structure for these trainings so as to meet state and federal standards.
Having a confident legal team like Steinberg Law on your side, will help protect your business and employees from discrimination and harassment. Keven Steinberg and his colleagues have worked with both employers and employees to create strong non-discrimination policies and prevent discrimination and harassment in the workplace. Take the first step to stronger anti-harassment policies and contact Steinberg Law today.