I. INTRODUCTION
Under § 703 of Title VII of the Civil Rights Act of 1964, as amended, employers are prohibited from engaging in or from tolerating the harassment of an employee based on race, color, sex, religion or national origin. The Age Discrimination in Employment Act (ADEA) prohibits harassment of employees who are 40 or older on the basis of age while the Americans with Disabilities Act (ADA) prohibits harassment based on disability.
II. HARASSMENT – DEFINITION
Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of that person’s (or that person’s relatives’, friends’ or associates’) race, skin color, religion, gender, national origin, age, or disability, and that:
Harassing conduct includes:
Harassment is a violation of federal Equal Employment Opportunity (EEO) laws when it involves discriminatory treatment based on race, color, sex (with or without sexual conduct), religion, national origin, age, disability or because the employee opposed job discrimination or participated in an investigation or complaint proceeding under EEO statutes.
The harasser’s conduct must be sufficiently frequent or severe to result in a “tangible employment action” (a term meaning a significant change in employment status, e.g., hiring, firing, promotion, demotion, undesirable reassignment, decision causing a significant change in benefits, compensation decisions and work assignment) or create a hostile work environment.
In determining harassing conduct, the law uses the “reasonable person” standard, i.e., if a reasonable person in the same or similar circumstances would find the conduct intimidating, hostile or abusive, then it likely constitutes harassment. The “reasonable person” standard includes consideration of the perspective of persons of the same race, color, religion, gender national origin, age or disability as the harassed person. Although harassing conduct is objectively viewed as creating a hostile work environment to be unlawful, a subjective perception of the harassed employee is still significant, for if the employee does not perceive the work environment to be hostile because of that conduct, the conduct is not unlawful harassment.
III. EMPLOYER LIABILITY AND RESPONSIBILITY
A. Harassment Culminates in a Tangible Employment Action
An employer may be held liable for a harassment claim if it involves discriminatory treatment that results in a “tangible employment action” based on race, color, sex, religion, national origin, age, disability or because an employee opposed job discrimination or participated in an investigation or complaint proceeding under the law.
B. “Hostile Environment” Harassment
An employer may also be liable for allowing employees to create a “hostile environment” for other employees. Hostile environment harassment occurs when unwelcome, severe and repeated verbal or physical conduct or communication unreasonably interferes with an employee’s job performance or creates an intimidating, hostile or offensive working environment. The intent of the harasser is not at issue. The test for harassment uses the “reasonable person” standard, i.e., from the viewpoint of the reasonable person. An employer may be liable for its employee’s acts if the employer knows or should have known such acts occurred. Hostile environment harassment must be severe and pervasive and therefore, an isolated instance is generally not sufficient to trigger employer liability.
C. Tangible Employment Action – Definition
“Tangible employment action” means a significant change in employment status, e.g., hiring, firing, promotion, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions or work assignment.
D. Supervisor – Definition
A person is considered the employee’s “supervisor” if that person has the authority to recommend tangible employment decision affecting the employee or if the person has the authority to direct the employee’s daily work activities. An employer is always responsible for harassment by a supervisor that leads to a tangible employment action.
E. Importance of Policy and Procedures
Even if harassment does not result in a tangible employment action, an employer remains liable, unless the employer proves that it exercised reasonable care to prevent and promptly correct any harassment and the employee unreasonably failed to complain to management or to otherwise avoid harm. This is the reason why an employer should establish, distribute to all employees and enforce a policy that prohibits harassment and sets forth a procedure for making complaints. It is advisable that such policy and procedure be reduced to writing.
IV. EMPLOYEE RESPONSIBILITY
An employee must take reasonable steps to avoid harm from the harassment and is able to exercise this responsibility by using the employer’s complaint procedure. An employer may avoid liability for its supervisor’s harassment if the employee failed to use the employer’s complaint procedure, unless the harassment resulted in a tangible employment action or unless it was reasonable for the employee not to complain to management (e.g., the employee had a legitimate fear of retaliation). An employer has the burden to prove that the employee acted unreasonably.
When an employee initiates a harassment complaint, the employee has the option to wait for the employer to correct the harassment or to file a charge. Federal anti-discrimination laws are enforced by the Equal Employment Opportunity Commission (EEOC) whereas Nebraska discrimination laws are handled by the Nebraska Equal Opportunity Commission (NEOC). A discrimination charge can be filed at both EEOC and NEOC, but in such cases, EEOC defers its investigation of a charge for at least 60 days to permit the NEOC to proceed with the case (EEOC is not bound by NEOC findings, but generally affords them significant weight). The deadline for filing an EEOC charge is with 180 days after the last date of alleged harassment, but if the charge is filed with the NEOC, this deadline is extended to 300 days. This deadline is notextended because of an employer’s internal investigation of the complaint.
V. REMEDIES AVAILABLE AND PREVENTATIVE ACTIONS
To minimize liability against harassment claims, an employer should establish, distribute to all employees and enforce a policy (preferably a written policy) that prohibits harassment and sets forth a written procedure for making complaints. The anti- harassment policy and procedures should be communicated to employees and reviewed on a scheduled basis. An effective complaint procedure will encourage employees to feel comfortable in approaching appropriate management with any problems they face at work, including any harassment that may occur.
The EEOC issued a “Questions & Answers for Small Employers on Employer Liability for Harassment by Supervisors” which states that:
Small businesses may be able to discharge their responsibility to prevent and correct harassment through less formal means. For example, if a business is sufficiently small that the owner maintains regular contact with all employees, the owner can tell the employees at staff meetings that harassment is prohibited, that employees should report such conduct promptly, and that a complaint can be brought “straight to the top.” If the business conducts a prompt, thorough, and impartial investigation of any complaint that arises and undertakes swift and appropriate corrective action, it will have fulfilled its responsibility to “effectively prevent and correct harassment.”
Any incident of alleged harassment should be treated seriously and as a potential liability case from the instance that it is reported (e.g., notify legal counsel immediately). Since some complaints may not refer to unwelcome conduct as harassment (but may call it “unprofessional conduct” or “inappropriate behavior”), an employer should ask the employee to describe the conduct more specifically. In addition, claims should not be dismissed in the belief that the complainant is over-sensitive or that the parties should work out their problems. Avoid making credibility judgments based on the reputation of the harasser or of the complaining employee. Rather, all claims should be investigated promptly and objectively.
No employer action should be taken that may be considered as harmful to the complaining employee, for such action could be considered a tangible employment action (e.g., transferring a complaining employee to a worse work location so as to separate the complainant from the alleged harasser). The investigation of a claim should be well documented. If the claim being investigated shows that harassment has indeed occurred, then the employer should do what is necessary to stop the harassment immediately, prevent the harassment from recurring and correct the effects of harassment (e.g., restore any job benefits lost due to the harassment). The employer should also take measures to discipline the harasser that are proportional to the seriousness of the action. The employer should document the steps taken to remedy the situation. If disciplinary action is not considered appropriate, the employer should also document the reasons why.
VI. CONCLUSION
The EEOC issued an “Enforcement Guidance” on the subject of “Vicarious Employer Liability for Unlawful Harassment by Supervisors” on June 18, 1999. The Guidance contains a thorough discussion of the law and interpretation of major court rulings regarding harassment. In addition, the Guidance sets forth elements that should be found in an anti-harassment policy and in a complaint procedure, as well as how an employer should investigate a harassment complaint. A thorough review of the Guidance is recommended for a broader understanding of the law, for drafting a policy and procedures and for conducting an investigation. The Guidance may be accessed at http://www.eeoc.gov/policy/docs/harassment.pdf. Another EEOC publication, entitled “Questions & Answers for Small Employers on Employer Liability for Harassment by Supervisors,” can be found by searching for the name of the publication at https://www.eeoc.gov/.. A sample “Policy on Unlawful Harassment” is reproduced for your assistance in creating an unlawful harassment policy and can be found in the Personnel section entitled "Policy on Unlawful Harassment (SAMPLE)."