Overview: In addition to sexual harassment in the workplace, federal law as well as most state law prohibits harassment against an individual based on his or her membership in a protected class. Therefore, individuals are protected from harassment based on race, national origin, religion, etc. Harassment may take the form of using insulting epithets, slurs or negative stereotypes; making rude and offensive jokes; threatening, intimidating or hostile acts; or written and graphic material such as cartoons that insult a particular individual or group based on that individual's or group's protected class.
To eliminate workplace harassment, employers should have a policy in place that strictly prohibits harassing behavior of any kind. All employees and supervisors should be provided with training on the policy. Further, employers should designate a multichannel reporting system to allow employees to bring workplace harassment complaints to the employer's attention. Further, employers should immediately respond to any complaints of harassment by investigating the matter and taking corrective action.
Trends: The EEOC has identified preventing harassment through systemic enforcement as well as targeted outreach and education efforts as one of its priorities in the most recent Strategic Enforcement plan. As such. there a significant number of harassment lawsuits being brought by the EEOC as well as individuals based on race, age, religion etc. As the workplace becomes more diverse, this has led to an increase in harassment suits of all kinds.
In Vance v. Ball State University, 570 U.S. (2013), the Supreme Court issued a critical decision which makes it more difficult for employees to prove that an employer is vicariously liable for a supervisor’s discriminatory or harassing conduct. Specifically, the Court held that a supervisor must be someone with the direct power and authority to take tangible employment actions against an employee. This issue is of primary importance when determining whether an employer is vicariously liable for a supervisor's actions in cases of harassment. Under the current law, if the harasser is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the harasser is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment in order to be liable. This is a much higher burden to meet.
Author: Beth P. Zoller, JD, Legal Editor
Updated to reflect forthcoming law prohibiting transgender discrimination in places of public accommodation.
Updated to reflect a federal district judge's ruling blocking the law prohibiting state action against religious organizations or persons for establishing sex-specific standards based on a sincerely held religious belief or moral conviction.
The EEOC Select Task Force on the Study of Harassment in the Workplace has released its report after a 14-month study of workplace harassment. The report includes a toolkit of compliance assistance measures for employers.
Updated when to include, policy and guidance to reflect expansion of discrimination protections to members of the National Guard of any state, effective July 1, 2016.
Enhanced to improve the comprehensiveness, organization and scope of coverage.
Updated policy and guidance to reflect new regulation clarifying that discrimination is prohibited based on an individual's known relationship or association with a member of a protected category.
Updated to reflect trade secret protections under the federal Defend Trade Secrets Act, effective May 11, 2016.
Updated the when to include, policy and guidance to reflect the Medical Marijuana Act.
Updated guidance to include North Carolina's Public Facilities Privacy and Security Act (House Bill 2).
California employers with five or more employees for each working day in each of 20 or more consecutive calendar weeks in the current or preceding calendar year are covered under the Fair Employment and Housing Act (FEHA) for discrimination and harassment purposes and should consider including this model policy statement in their handbook.
HR guidance on preventing and responding to workplace harassment, including instituting a policy, providing training to employees and supervisors, and immediately investigating harassment complaints.