A few years ago the U.S. Equal Employment Opportunity Commission announced the settlement of a harassment lawsuit against Tavern on the Green, a landmark restaurant located in Central Park in New York City, for $2.2 million. The EEOC charged in the case that Tavern on the Green engaged in severe and pervasive sexual, racial, and national origin harassment of female, black, and Hispanic employees. According to the EEOC’s New York Director, “This case should remind employers to take seriously allegations of harassment and retaliation, especially where managers in positions of authority are involved in the misconduct.”
This settlement along with several other high profile settlements should serve as a warning to businesses that operate without an effective no-harassment policy.
What is discriminatory harassment?
Discrimination occurs when an employer takes an adverse employment action – for example, fails or refuses to hire, fails to promote or terminates an employee – because of the employee’s race, color, religion, sex, national origin, age, disability or membership in another protected categories. Harassment is a kind of discrimination. Discriminatory harassment occurs when an individual is treated differently at work (harassed) because of his or her membership in a protected group.
Hostile-work environment harassment claims arise when verbal or physical conduct of employees has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating hostile or offensive work environment.
What groups are protected?
The perils associated with sexual harassment lawsuits are familiar to us from the media. Many of us saw Michael Scott of The Office sign a waiver absolving Dunder-Mifflin of liability when he dated his boss; we’ve also seen the children of South Park learn how to comply with federal laws from the Sexual Harassment Panda. Thus small business owners sometimes falsely assume that the anti-discrimination laws only implicate harassment based on sex.
In fact, harassment based on race, color, ethnicity/national origin, religion, age, disability, pregnancy, veteran status and citizenship status is also prohibited under federal law. The number of racial harassment cases filed in federal courts has more than doubled since the 1990s.
How can I protect my business from a harassment claim?
An employer can provide an affirmative defense to a harassment charge if the employer took reasonable care to prevent harassment from occurring and then took prompt and appropriate corrective action, and the employee failed to follow the employer’s complaint procedures.
Practically speaking, you can minimize your liability by doing the following: (1) implement a written non-harassment/non-discrimination policy and train all employees about what constitutes unlawful harassment; (2) develop procedures by which your employees can make complaints about potential unlawful harassment and make sure employees understand these procedures; and (3) develop mechanisms for investigating incidents of alleged harassment thoroughly and fairly.
It’s a good idea to check with an attorney licensed in your state as you develop these policies and procedures. Also consult the NFIB Model Employee Handbook for Small Business to obtain a sample Non-Harassment/Non-Discrimination Policy, available at
www.NFIB.com/legalpublications.
