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Federal Law and Workplace Harassment
 
 
Federal Law and Workplace Harassment
 
 

Harassment of any kind is deemed illegal under federal law. There are numerous components of those laws, including what is defined as harassment, what actions can be taken, and how to prove that what occurred was actually harassment. Unless you are a lawyer or are somehow familiar with the legal system, navigating the legalities associated with workplace harassment can be a bit complicated or overwhelming. However, that does not mean that you will require a lawyer or some other legal expert in order to make sense of what the legalities of workplace harassment detail.

Understanding those legalities are necessary when dealing with workplace harassment. They often determine what can and cannot be done in terms of actions taken against or thwarting instances. Discussing them as a part of preventing workplace harassment is thus necessary and will be the focus of this article. Topics will include some of the relevant laws, the circumstances for legal action, and what options are available for those taking legal action.

  Specific Laws Regarding Harassment
  

Some of the laws regarding harassment in the workplace have been briefly discussed as they related to the topic at hand. The primary federal law that prohibits harassment in the workplace (or in any formal setting) is Title VII of the Civil Rights Act of 1964.1 At the moment, it formally covers most areas of harassment and discrimination in the workplace, with the exception of sexual orientation. Over the years, there have been several additions and amendments made to Title VII, including:

  •          The Lilly Ledbetter Fair Pay Act-A law that was signed in 2009, the Fair Pay Act altered information regarding the statute of limitations for any pay discrimination filed claims under Title VII.2 Specifically, the alterations were made in regard to when the statutes begin, i.e. the point in which the harassment or discrimination is considered to have started. Instead of the start point being when an unlawful employment practice was adopted into use, it was expanded to when the employee impacted by it was first subjected to it and any other instance of the practice's usage. If the discrimination practice was in play for six out of seven times a victim was paid for their work (e.g. every paycheck), then it counts for each of those six times. Any back pay preceding the filing of the discrimination claim for up to two years is also something that the employee can recover with the act.

  •          The Rehabilitation Act of 1973-Title VII originally was only applicable to non-federal public employees and those working for private companies. The Rehabilitation Act changed that by extending Title VII to the federal government and providing protection for federal employees. Rather than being an entirely new law, it was just a simple amendment to the details of another.

     

  •          The Pregnancy Discrimination Act-Altered sections of Title VII on sex/gender discrimination to include pregnancy.3 It prevents employers from discriminating against employees for pregnancy, childbirth, and maternity care or other related medication conditions. For example, an employer cannot refuse to hire a pregnant woman simply because she is pregnant nor can they fire an employee for becoming pregnant. Likewise, employers cannot force pregnant employees into taking leave due to their pregnancy or punish them for missing work due to their pregnancy (e.g. doctors appointments, the actual birth, etc.).4

     

  •          Nineteenth Century Civil Rights Act-The Nineteenth Century Act was an amendment act for the Civil Rights Act of 1964, Title VII, the American's with Disabilities Act, and the Rehabilitation Act in 1993. It also impacted an older law, the Civil Rights Act of 1866, that was still active and still being used in some cases.5 The NCCRA made adjustments to ensure that ALL persons experiencing harassment or discrimination were able to use any of these laws; basically, it helped eliminate any discrimination in the anti-discrimination laws. It also outlined what damages or compensation victims could expect under any of those laws as well.

     

    There are also other laws regarding workplace harassment and discrimination that are not a part of Title VII. They include:

  •          The Employment Non-Discrimination Act-ENDA is a piece of legislation that explicitly prohibits discrimination based on sexual orientation.6 At this time, there are no federal laws regarding discrimination against LGBT employees and ENDA would be the first. It extends protection not just to employees who identify as LGBT who were harassed or discriminated against for their orientation, but also those who were harassed or discriminated against because some believed or perceived that they were LGBT (even if they were not). Unlike others on this list, it is not currently law; however, several states have instituted their own version of EDNA and the law is expected to be reintroduced in Congress until it is passed.

  •          The Genetic Information Nondiscrimination Act-A law that bans any discrimination based on an employee's genetic information. This typically applies to any condition that an employee may have that is tied to their genetics that may cause someone to view or treat them differently.7 An example would be an employee with Sickle Cell Anemia, which is a condition that can be passed down through genetics. There are only certain situations in which an employer would know or be able to request an employee's genetic information, such as by accident (e.g. in casual discussion), as a part of FMLA, sponsored wellness programs that are voluntary, or public sources (e.g. newspaper story about a fundraiser for the employee's medical condition).8 GINA also extends to health insurance companies who may discriminate against clients for certain genetic conditions.

  •          Family And Medical Leave Act-FMLA is one of the more complicated laws out there, and it extends outside of being a harassment or discrimination law. The law basically allows employees to take time off from work to address personal and family matters, including serious illness, deaths, legal issues, etc. impacting themselves or a family member without being punished for it.9 It usually applies to immediate family (spouse, children, parents, siblings), but can include anyone that the person is responsible for, like if they have legal guardianship over a younger relative like a cousin. Immediate family members or next of kin for members of the military who are injured or killed in the line of duty are also included in FMLA. Eligibility for FMLA applies to employees who have already worked for their employer for twelve months or more (total, does not need to be consecutive), worked 1,250 hours minimum in twelve consecutive months, and is at a worksite of 50 or more employees.

  •          Americans with Disabilities Act (ADA) & The ADA Amendments Act-ADA protects those with disabilities from workplace discrimination and harassment and is applicable for businesses with fifteen or more employees, including state/local government agencies.10 It covers both physical and mental disabilities, and can also extend to those who have temporary disabilities (e.g. those as a result of a medical condition or that can be reversed by medical care). The ADA Amendments Act was introduced in 2008 as a way of expanding the ADA. This increase the definition of what is covered under the ADA and the laws interpretations for better understanding and use.                                                                                             

    There are also numerous harassment and discrimination laws that are applicable to the workforce on the state and local levels. By 2012, about thirty-four states (including the District of Columbia) had state-wide workplace protection laws in place regarding discrimination and harassment11:

  •          Alaska

     

  •          Arizona

     

  •          California

     

  •          Colorado

     

  •          Connecticut

     

  •          Delaware

     

  •          Hawaii

     

  •          Illinois

     

  •          Indiana

     

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  •          Iowa

     

  •          Kansas

     

  •          Kentucky

     

  •          Louisiana

     

  •          Maine

     

  •          Maryland

     

  •          Massachusetts

     

  •          Michigan

     

  •          Minnesota

     

  •          Missouri

     

  •          Montana

     

  •          Nevada

     

  •          New Hampshire

     

  •          New Jersey

     

  •          New Mexico

     

  •          New York

     

  •          Ohio

     

  •          Oregon

     

  •          Pennsylvania

     

  •          Rhode Island

     

  •          Vermont

     

  •          Virginia

     

  •          Washington

     

  •          Wisconsin
  • As of 2017, Florida, Idaho, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming also have state-level anti-discrimination laws in addition to the existing federal laws.12 North Carolina does have such laws, but they are only applicable if a group files together. They also have the option to file in court a "public policy" claim regarding the discrimination laws of the state, which is also an option in Ohio and West Virginia. The only states who do not have any state-wide workplace harassment or discrimination laws outside of the federal ones are Alabama, Arkansas, Georgia, and Mississippi. It is possible that there may be laws on the county, municipality, or local levels in all fifty states as well.

      When Does Legal Action Become An Option?

    Legal action can be a viable option if the harassment 1) violates the victim's protected status, and 2) is considered to be unwelcome. It also must be disruptive enough for any reasonable person to find it hostile or abusive, and the victim must find it abusive.13 Determining if the behavior or conduct meets those standards, there usually needs to be some kind of pattern. For single instances or when a pattern has yet to develop, they usually need to be of some kind of severity. This can vary from case to case, but the following factors are often taken into consideration:

  •          Effects on Well-being-The impact on a person's psychological well-being is typically a good indicator. When there has been a physical element to the harassment (e.g. the harasser physically struck or attacked the victim), then that too is considered.

     

  •          Severity-Was the behavior threatening or humiliating? Or was it simply offensive? Again, this can be applicable for both a physical and psychological impact.

     

  •          Effects of Work-What impact has the harassment had on the person's ability to execute their work duties? Things like changes in work performance and quality, attendance, and interactions with co-workers are good indicators.

     

  •          Harasser's Position-The position of the harasser in relation to the victim is often of note. Harasser's with seniority or some kind of authority over their victim are common, and their position may be an indicator that they are abusing their power in some way.

     

  •          Frequency-An off-comment in an otherwise normal working relationship doesn't necessarily mean that it's harassment. However, if there are multiple incidents that are happening with an identifiable/predicted frequency, then it may be. This factor may be excluded in extreme one-time cases (e.g. physical attack).

      What Legal Options Are Available?

    Legal action isn't necessarily going to be required in every instance. Harassment and discrimination can be handled within the business, depending on the circumstances. Usually, taking legal action and going to court is a stronger option when the business does nothing to address the harassment or if it is poorly handled when it is addressed. If legal action is to be taken, then here are some of the options and things you need to consider if you are involved:

  •          Get Legal Counsel-Getting a lawyer seems like a no-brainer, but you want to make sure that you get the right one. If the situation calls for it (e.g. you are the victim, the harasser, or the employer), then it's best that you get a lawyer who is familiar or experienced with cases of workplace harassment and discrimination. They will have the appropriate knowledge for the situation to properly guide you through the legalities with the best possible outcome. You may want to consider getting a lawyer anyway or at least consult one during the investigation for any legal advice or questions that you may have.14 Witness of harassment who may be involved in legal action may also want to consider hiring a lawyer to represent and guide them.

     

  •          Document EVERYTHING-When you take legal action, you have to prove that the harassment occurred and that it has had an effect.15 While there will often be an investigation, you don't want to rely solely on whatever evidence is provided from it. Documentation of the harassment can help with a claim or any legal action being taken. This means things like threatening emails or notes, reports that were filed, witness statements, etc. Be careful with audio recordings as there may be some additional legalities involved; if they left a threatening or harassing voicemail, for example, you may have to prove that it was from the harasser and was a part of the workplace harassment. Make copies if necessary, and consult with your legal counsel on what can be used.

     

  •          Lawsuit-A lawsuit is usually what people mean when the idea of taking legal action is discussed (formal charges and claims are usually viewed differently than suing someone). Before you file a suit, it's usually recommended that you exhaust all other avenues first. This means you should confront the offender first (as much as you may not want to, maybe have someone with you), file your formal complaint within the business/company, and file an administrative charge with the EEOC.16 When you do decide to file a lawsuit against the harasser and/or your employer, follow whatever procedure is in place in your area to do so. Keep in mind that you may not go through the full court system, as settlements or an agreement of some kind can be made before going in front of a judge. And not all cases will necessarily end in a resolution either.

     

     

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