Overview: To establish a hostile work environment under Title VII and other federal antidiscrimination laws as well as under applicable state and local laws, an individual must prove that he or she is subject to unwelcome conduct based on the individual's gender or other protected characteristic.
A hostile environment can be created by verbal conduct or non-verbal conduct.
The individual must show that the conduct is sufficiently severe or pervasive such that it actually alters the conditions of the victim's employment and creates an abusive and hostile working environment.
However, an employer should understand that the prohibition against a hostile work environment does not establish a general civility code in the workplace. Therefore, simple teasing, offhand comments and isolated incidents (unless extremely serious) will not constitute a hostile work environment.
Evaluating whether an environment is sufficiently hostile or abusive requires an evaluation of the totality of the circumstances.
In order to eliminate a hostile work environment, an employer should develop policies and practices aimed at eliminating abusive and harassing conduct based on an individual's membership in a protected class.
An employer should also provide employee training and development to all employees and supervisors so they know how to identity and report instances of a hostile work environment.
Further, an employer should institute an effective complaint procedure that permits victims to bring complaints and should promptly respond to all complaints by conducting a thorough investigation, taking corrective measures, and imposing discipline if needed.
Trends: Very soon in Vance v. Ball State University (Case No. 11-556), the US Supreme Court will consider the issue of who is a workplace supervisor for purposes of harassment under Title VII.
In doing so, the Court will attempt to resolve the current split among the circuit courts regarding how much authority an agent of an employer must exercise over an employee to be deemed a supervisor.
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 for plaintiffs to meet.
Beth P. Zoller, J.D., Legal Editor
The Tennessee Employment At-Will and Terms of Employment sections have been updated to reflect a discussion of the intentional interference with employment cause of action available to employees, illustrated in a recent case decided by the Tennessee Court of Appeals.
Internal investigations are one of the employer's most effective tools to respond to complaints of discrimination, harassment, waste, theft, fraud or other misconduct. This checklist can assist you in deciding whether to investigate, crafting the investigation to be effective, and producing useful results.
XpertHR has updated the Litigation section of the Investigations and Litigation chapter to reflect two recent federal court rulings pertaining to employer obligations in discrimination cases brought by the EEOC and litigation tactics when employers are accused of fostering hostile work environments.
XpertHR's Retail Resource Center for HR: Discrimination, Harassment and Equal Opportunity helps retail employers handle their most vexing employment issues by bringing relevant resources together in one place for easy access.
Because the trucking industry is a male-dominated industry in which women remain a minority, transportation employers have frequently encountered sex harassment and sex discrimination lawsuits. Although the Equal Employment Opportunity Commission's (EEOC's) class action sexual harassment claim against CRST Van Expedited, one of the largest interstate trucking companies, failed to take flight, the case and ensuing settlement provide employers with valuable insight into what the EEOC may build a case on.
The transportation and trucking industry - which has traditionally employed mostly white males - has long been hit with discrimination claims based on race, sex, disability and other protected classes. A recent jury award demonstrates that companies will pay a hefty price for allowing a racially charged atmosphere and failing to respond to race discrimination and harassment complaints.
With Valentine's Day around the corner, many employees may have romance on the brain - and a fellow employee or even a supervisor or subordinate may be the target of their affection. An employer has plenty of reasons to discourage dating and romantic relationships in the workplace, including making the mistake of allowing a prior relationship between co-workers to cloud its handling of a sexual harassment complaint. One employer found out the hard way that it should not have discounted an employee's sexual harassment claim due to her prior intimate relationship with the alleged harasser.
When employees resign, employers have a valuable opportunity to both gather candid information regarding their business practices and identify risk. This How To will assist employers with the steps to encourage employees to participate in exit interviews, select the right person to conduct exit interviews and how best to prepare for, conduct and process the information obtained during exit interviews.
An employer may use this policy to convey the purpose for and importance of conducting exit interviews with employees departing the organization. Given that employers may collect valuable, candid information regarding employment practices from outgoing employees and may also identify post-termination risks such as lawsuits, employers are strongly encouraged to conduct exit interviews with all willing, outgoing employees. This policy can be used to put current employees on notice of the employer's intention to conduct such interviews and what the employer intends to do with the information it gathers.
A recent settlement against the largest Burger King franchisee may leave employers with a bad taste in their mouths and encourage them to be more proactive when it comes to sexual harassment. Carrols Corporation (Carrols) agreed to pay $2.5 million to a class of 89 women to settle a lawsuit brought by the Equal Employment Opportunity Commission (EEOC), alleging that the women were subjected to egregious sexual harassment and retaliation by managers when they worked at Burger King restaurants in the Midwest, Southeast and Northeast.
HR guidance on how to create and implement policies and practices that prevent and respond to allegations of a hostile work environment.
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