HRM 466

U.S. EMPLOYMENT LAWS AND REGULATIONS

(SHRM)

Part II
Dr. Heather M. Clarke
 U.S. EMPLOYMENT LAWS AND
REGULATIONS
• Topic Groups:
– Part I
• HR and the Legislative and Regulatory Environment
• Organizational Compliance with Laws and Regulations
• Employment and Authorization to Work
– Part II
• Equal Employment Opportunity
– Part III
• U.S. Compensation Laws
– Part IV
• U.S. Leave and Benefits Laws
– Part V
• U.S. Employee Safety and Health Laws
• Employee Relations Laws
• Employee Records Management Requirements in the U.S.
Equal Employment Opportunity
 EQUAL EMPLOYMENT
OPPORTUNITY
• Subtopics:
– The Concept of Equal Employment Opportunity
– EEOC Complaint Process
– Title VII of the Civil Rights Act of 1964, Amendments, and Cases
– Civil Rights Act of 1991
– Vietnam Era Veterans’ Readjustment Assistance Act of 1974
– Age Discrimination in Employment Act and Amendment
– Americans with Disabilities Act and ADA Amendments Act
– Workplace Harassment
– Genetic Information Nondiscrimination Act
THE CONCEPT OF EQUAL EMPLOYMENT
OPPORTUNITY
• Protected Classes - describes people who are covered
under a particular federal, state, or local
antidiscrimination law.
• Individuals may be protected based on their actual
membership in a protected class, if they are perceived to
be a member of a protected class (even if that
perception is wrong) or based upon the protected class
of a person with whom the individual associates.
THE CONCEPT OF EQUAL EMPLOYMENT
OPPORTUNITY
• There are two primary types of discrimination:
– Disparate treatment discrimination - occurs when an applicant or
employee is treated differently because of his or her
membership in a protected class.
• Also referred to as direct or intentional discrimination
• Note: intentional ≠ discriminatory animus

– Disparate impact (or adverse impact) - results when a policy that

appears to be neutral has a discriminatory effect (meaning it has
unequal consequences for members of a protected class).
• Also called indirect or unintentional discrimination
• Note: disparate impact is typically unintentional, but it can be intentional.
EEOC COMPLAINT PROCESS
• In cases of alleged discrimination, an individual must first file an
administrative charge with the Equal Employment Opportunity
Commission (EEOC), which is the federal agency responsible for
enforcing antidiscrimination laws, or with the state agency
responsible for handling such charges.
– For example, in Wisconsin the Equal Rights Division of the Department of
Workforce Development handles complaints under the Wisconsin Fair
Employment Act.
– The EEOC has field offices nationwide. Charging parties who believe that they
have been discriminated against can file a charge in any field office.
– 706 agency – a state agency that handles EEOC claims under a work-sharing
agreement with the EEOC.
– The complainant must file with the EEOC or state agency and cannot file in the
court system until issued a right-to-sue letter.
EEOC COMPLAINT PROCESS
• A claim must be filed with the EEOC within 180 days of
the date of the discriminatory incident (i.e., the 180-day
rule)
• In some states (including Wisconsin) complainants have
300 days to file under state legislation and are also given
300 days to file with the EEOC (i.e., a deferral state).
• See Exhibit 38: EEOC Complaint Process
EEOC COMPLAINT PROCESS
• Retaliation
– Individuals can file claims for negative consequences they experience
from their employer for engaging in protected activities.
• Protected activities - A protected activity includes actions such as filing a complaint,
threatening to file a complaint, refusing to obey an order that can be reasonably
believed to be discriminatory or unsafe, engaging in concerted activity with other
employees to obtain changes in employment terms or conditions, or picketing to
protest the terms and/or conditions of employment.
– A retaliation claim does not depend on the discrimination claim being
successful.
– Retaliation includes any adverse employment action.
• Firing, demoting, or disciplining; threatening; criticizing; discussing the complaint with
the employee, a third party, or internal party without valid business reason.
• Can also include adverse employment action against a relative.
 TITLE VII
• Title VII of the Civil Rights Act of 1964
– The Civil Rights Act (1964,1991) prohibits discrimination in
education, employment, public accommodations, and the receipt
of federal funds on the basis of race, color, gender, national
origin, and religion.
– Title VII is the employment section.
– The first comprehensive federal law making it unlawful to
discriminate in employment in the U.S.
– Title VII was passed to bring about equality in hiring, transfers,
promotions, compensation, access to training, and other
employment-related decisions.
 TITLE VII
• Title VII prohibits discrimination on the basis of race, color, sex,
religion, and national origin.
– National origin: refers to the country of one’s birth or ancestors’ birth.
• “National origin” and “ethnicity” often are used interchangeably, although an “ethnic group”
can refer to religion or color as well as the country of one’s ancestry.

– Race: includes characteristics associated with race (such as hair texture, skin
color, or certain facial features).

– Sex: biological and physiological characteristics that classify individuals as

female, male, intersex, etc.
• Court decisions have expanded sex to include gender, gender identity, and sexual
orientation.
• Gender - refers to the socially constructed system that associates masculinity or femininity
with certain roles, behaviors, activities, and attributes.
• Gender identity - refers to one’s internal, personal sense of being a man or a woman (or
boy or girl), which may or may not be the same as one’s sexual assignment at birth.
• Sexual orientation - is the sexual, romantic, or emotional/spiritual attraction that one feels for
persons of the opposite sex or gender, the same sex or gender, or both sexes and more
than one gender.
 TITLE VII
• Discrimination in what?
– Recruiting, hiring, and advancement
• Job requirements must be uniformly and consistently applied.
• Even if a job requirement is applied consistently, if it is not important for job
performance or business needs, the requirement may be found unlawful if
it excludes persons of a protected class significantly more than others.
• Examples of potentially unlawful practices include:
• Soliciting applications only from sources in which all or most potential workers are of the
same race, gender, etc.
• Requiring applicants to have a certain educational background that is not important for job
performance or business needs.
• Testing applicants for knowledge, skills, or abilities that are not important for job
performance or business needs.
• Employers may legitimately need information about their employees’ or
applicants’ gender, race, etc. for affirmative action purposes and/or to track
applicant flow. Employers subject to affirmative action obligations must
ensure that such information is collected in a manner compliant with all
relevant laws.
 TITLE VII
• Discrimination in what? (cont.)
– Segregation and classification of employees - Title VII is violated if employees
who belong to a protected class are:
• Segregated by physically isolating them from other employees or from customer contact.
• Assigned to different job classifications based on their membership in a protected class.

– Harassment/hostile work environment - Title VII prohibits sexual harassment

and harassment based on the other protected categories.
• Employers should, among other things, develop a policy prohibiting sexual and other
unlawful workplace harassment, including an internal complaint procedure, and
disseminate the policy to all employees.

– Compensation - Title VII prohibits discrimination in compensation practices.

• Best employer defenses include basing compensation practices on seniority, merit,
performance, or systems that measure the quality and/or quantity of work.

– Other terms or conditions of employment - Discrimination on the basis of a

protected class may not be the basis for differences in benefits, work assignments,
performance evaluations, training, discipline or discharge, or any other area of
employment.
 TITLE VII
• Title VII applies to:
• Most private employers and state and local governments that
have 15 or more employees.
• Educational institutions.
• Federal government agencies.
• Public and private employment agencies.
• Labor unions with 15 or more members.
• Joint (labor-management) committees for apprenticeships and
training.
 TITLE VII
• There are some exceptions that affect the application of Title VII
antidiscrimination principles in the workplace.
– Work-related requirements - A practice that has a disparate impact on a class of
people but is job-related and required by business necessity. (i.e., the business
necessity defense to disparate impact)

– Bona fide occupational qualification – A qualification reasonably necessary to

carrying out a particular job function in the normal operations of the organization.
(i.e., the BFOQ defense to disparate treatment).
• Race can never be a BFOQ.

– Bona fide seniority systems that were not designed to discriminate.

– Affirmative Action Plans - Targeted or selective selection to fulfill an affirmative

action plan as required by law or to correct historical discrimination.
 TITLE VII AMENDMENTS
• The Equal Employment Opportunity Act
– Amended Title VII in several ways:
• Gave the EEOC litigation authority (i.e., the EEOC can choose to
sue the employer on the complainant's behalf).
– Prior to 1972 claims were referred to the Department of Justice to
litigate if the EEOC found reasonable cause.
• Expanded coverage to educational institutions, state and local
governments, and federal executive agencies.
• Reduced number of employees from 25 to 15.
• Expanded limitation period from 90 to 180 days (210 to 300).
• Expanded time limit to file lawsuit from 30 to 90 days.
 TITLE VII AMENDMENTS
• Pregnancy Discrimination Act
– Amends Title VII so that ‘because of sex’ now includes ‘because
of, or on account of, pregnancy, childbirth, or related medical
conditions.’
• Can’t fire or refuse to hire due to pregnancy
• Can’t have special rules for pregnant women
• Can’t force leave or job reassignment unless a BFOQ
• Can’t stop accrued seniority (unless applies to all temporarily disabled
employees)
– Essentially requires employers to treat pregnancy the same as
any other temporary disability/health condition (e.g., access to
benefits and sick leave).
 TITLE VII
• Uniform Guidelines on Employee Selection Procedures
– Cover all aspects of the selection process, including recruiting, testing,
interviewing, and performance appraisals (to the extent that they are used to
make employment decisions).
• http://www.uniformguidelines.com/uniformguidelines.html
• (This link is provided for information purposes only. You do not need to know the guidelines for the
SHRM exam.)
– The guidelines do not have the force of law but are applied by the EEOC and
viewed favorably by the courts.
– The guidelines recommend that employers (including federal contractors) be able
to demonstrate that selection procedures that have an adverse (or disparate)
impact upon minorities or women are valid in predicting or measuring
performance in a particular job.
• Any selection procedure that has an adverse impact on the hiring of any protected class will be
presumed discriminatory and inconsistent with the Uniform Guidelines unless the procedure has been
validated in accordance with the guidelines or the user can justify the procedure in accordance with
federal law.
• Otherwise, an alternative selection procedure must be used (provided the alternative procedure
eliminates the adverse impact, is lawful, and is job-related).
 TITLE VII
• Uniform Guidelines (cont.)
– Under the guidelines, adverse impact occurs when the selection rate for an
employment decision works to the disadvantage of a protected class.
– As a rule of thumb, this occurs when the selection rate for a protected class is
less than 80% of the rate for the class with the highest selection rate.
– This is commonly known as the 80% rule or four-fifths rule.
– Adverse or disparate impact is statistically demonstrated when the selection rate
for the protected group is less than 80% of that of the higher-scoring majority
group.
– How to apply the four-fifths rule:
• Identify the selection rate (the percentage hired) for each group
• Divide the lowest selection rate (minority group) by the highest selection rate (majority
group).
• For example: If 50% of male applicants are selected and 20% of female applicants are
selected, 20 ÷ 50 = 40%. This is less than 80% and disparate impact has been
demonstrated.
 TITLE VII
• An employer can rebut the presumption of adverse impact by
validating that the selection procedure is job-related for the position
at issue and is consistent with business necessity or can challenge
the validity of the employee’s statistical analysis.
• Employers have the following alternatives:
• Analyze the data more rigorously to determine whether there is in fact adverse
impact. This may include both statistical and practical analyses.
• Use another procedure that has been demonstrated to have lesser adverse
impact.
• Modify the procedure to eliminate adverse impact.
• Validate the job-relatedness of the selection procedure (using, for example,
validation studies, detailed records, and fact finding about alternatives with less
adverse impact).
• Justify the procedure as a business necessity.
 TITLE VII
• Executive Order 11246
– Prohibits federal contractors and federally‐assisted construction contractors and
subcontractors, who do over $10,000 in Government business in one year from
discriminating in employment decisions.
– Requires government contractors to take affirmative action to ensure that equal
opportunity is provided in all aspects of their employment.
– Prohibits federal contractors and subcontractors from taking adverse employment
actions against applicants and employees for asking about, discussing, or sharing
information about their pay or the pay of their co‐workers.

• Executive Order 11478

– Prohibited discrimination in employment in federal civilian workforce.

• Executive Order 13672

– Amends Executive Order 11478 and Executive Order 11246 to include gender identity
and sexual orientation.
 TITLE VII CASES
• Griggs v. Duke Power (1971)
– Why this case is important: Set the standard for determining
whether discrimination based on disparate impact exists.
• When an employer establishes an employment practice (such as an
education requirement or a test score), the employer must be able to justify
the practice as being job-related and consistent with a business necessity.

• Practices, procedures, or tests that appear neutral on their face, and even
neutral in their intent, but result in a discriminatory effect on a protected
class (without the above justification) are illegal.
 TITLE VII CASES
• Griggs v. Duke Power (1971)
– Synopsis:
• Duke Power historically discriminated against blacks, relegating them to
employment in low-level positions and departments.
• When Duke finally dropped these overt discriminatory practices, because
Title VII was enacted, they adopted “seemingly neutral” education and test
score requirements.
• Griggs’s job application was denied because he was not a high-school
graduate and did not perform sufficiently well on two preemployment tests.
• Griggs successfully claimed that these job requirements were discriminatory
because they did not relate to job success and had a negative impact on
protected classes.
 TITLE VII CASES
• Phillips v. Martin Marietta Corporation (1971)
– Why this case is important: One of the first cases to apply the
sex discrimination provisions of Title VII to employment
decisions.
– Phillips applied for a job with Martin Marietta but was informed
that the company did not hire women with preschool-aged
children.
– The U.S. Supreme Court ruled that it is contrary to Title VII for a
company to refuse to hire a woman because she has preschool-
aged children when it does not impose a similar restriction on
hiring men,
 TITLE VII CASES
• McDonnell Douglas Corp v. Green (1973)
– Why this case is important: Established the criteria for disparate
treatment.
– The U.S. Supreme Court set out the test to be applied to
determine whether a complainant has established a prima facie
case of discrimination:
• Employee belongs to a protected class;
• Employee applied for and was qualified for a job for which the
employer was seeking applicants;
• Employee was rejected and, after the rejection, the position
remained open; and
• Employer continued to seek applicants with the rejected applicant’s
qualifications.
 TITLE VII CASES
• McDonnell Douglas Corp v. Green (1973)
– Synopsis:
• Green was employed as a mechanic at McDonnell Douglas.
• In 1964, he was laid off during a general workforce reduction.
• While unemployed, he was involved in protest activities at the company. He
participated in a lock-in, placing a chain and padlock on a factory door so no
one could enter or leave. He and a group of employees also parked their
cars across the gates of the plant so no one could enter or leave.
• When the company advertised for mechanics, Green reapplied and was
rejected.
• Green sued, and he prevailed by arguing that the company rejected him
because of his race and his involvement in the civil rights movement.
– SHRM states that Green prevailed but that is incorrect. Green ultimately lost his
case because he failed to provide evidence that McDonnell Douglas’s claim that
they refused to hire him because of his illegal activity was a pretext.
 CIVIL RIGHTS ACT OF 1991
• The passage of the Civil Rights Act of 1991 was in response to a series of U.S.
Supreme Court decisions on employment discrimination. The statute negated several
of the Court’s decisions and added some new provisions, most notably:
– It allows employees who win discrimination cases to collect punitive and
compensatory damages.
– It allows jury trials in cases where the plaintiff seeks compensatory or punitive
damages.
• Compensatory damages are awarded to make an injured person “whole.” Such
damages include compensation for damaged property, lost wages or profits, pain,
bereavement, medical expenses, etc., and financial payment for a person’s out-of-
pocket losses and future expenses due to injury, disability, disfigurement, pain, and
suffering and all actual losses, whether economic or noneconomic.

• Punitive damages (also called exemplary damages) are damages requested and/or
awarded in a lawsuit when the defendant’s willful acts were malicious, violent,
oppressive, fraudulent, wanton, or grossly reckless. The purpose of punitive damages
is to punish the defendant for outrageous misconduct and to deter the defendant (and
others) from future similar misbehavior.
 VEVRAA
• Vietnam Era Veterans’ Readjustment Assistance Act of 1974
– Requires contractors and subcontractors with a federal contract or
subcontract in the amount of $150,000 or more to take affirmative action
to employ and advance in employment specified categories of veterans,
and it prohibits discrimination against such veterans.
– Requires contractors and subcontractors to list their employment
openings with the appropriate employment service delivery system and
that covered veterans receive priority in referral to such openings.
 ADEA
• Age Discrimination in Employment Act
– Prohibits discrimination in employment based on age, but only
for individuals who are at least 40 years old
• Covers all state and local governments, private employers with 20 or more
employees, unions with 25 or more members, employment agencies, and
apprenticeship and training programs. It is enforced by the EEOC.
• With a few exceptions, mandatory retirement is prohibited.
• Exceptions to the ADEA:
• The employer is adhering to a genuine seniority or benefit plan.
• The employer is disciplining or firing a person for reasonable factors other
than age.
• The employee is a top executive or policy maker. (High-level managers and
certain bona fide executives or high policy makers can be required to retire
at age 65 if they are entitled to receive organization-sponsored retirement
benefits of at least $44,000 per year, in the aggregate, and have held their
position for two years immediately prior to retirement.)
 ADEA
• Older Workers Benefit Protection Act
– The Older Workers Benefit Protection Act (OWBPA) of 1990
amended the ADEA to prohibit discrimination in two areas:
• Employee benefits - The act provides guidance on the ADEA requirement
that benefits offered to older workers must be equal to the benefits offered to
younger workers.
• Waivers of claims - The act provides standards that an employee’s waiver of
the right to sue for age discrimination must meet in order to be upheld by a
court.

– The OWBPA makes it unlawful for an employer to:

• Use an employee’s age as the basis for discrimination in benefits.
• Target older workers for staff-cutting programs.
• Require older workers to waive their rights without observing certain
safeguards.
 ADA AND ADAAA
• Americans with Disabilities Act
– Prohibits discrimination against a qualified individual with a
disability because of his or her disability.
– Applies to all private and state and local government employers
with 15 or more employees, employment agencies, labor
organizations, and joint labor-management committees.
– The ADA does not cover the federal government when it acts as
an employer.
• The Rehabilitation Act of 1973 (an affirmative action statute) applies to the
federal government and its contractors and subcontractors. Section 501
applies only to the federal government as an employer; Section 503 applies
only to federal contractors and subcontractors with contracts over $10,000.
 ADA AND ADAAA
• To be “qualified” under the ADA, an individual must:
• Have the requisite skills, experience, education, licenses,
etc.
• Be able to perform the essential functions of the job, either
with or without reasonable accommodation.
• Essential functions refers to the primary job duties that a qualified
individual must be able to perform, either with or without
accommodation. A function may be considered essential for a
variety of reasons, including (but not limited to) the following items:
• The reason the job exists is to perform the function.
• There are a limited number of employees available among whom performance of
the job function can be distributed.
• The function may be highly specialized and require specific expertise or ability.
 ADA AND ADAAA
• The basic definition of disability contained in the ADA considers an
individual disabled if they:
• Have an impairment that substantially limits one or more major life activities.
• Have a record of such an impairment.
• Are regarded as having such an impairment.

• Some examples of “major life activities” covered by the ADA include:

– Walking, seeing, hearing, breathing, thinking, communicating, operation of major
bodily functions, transferring/mobility, toileting/personal hygiene, bathing and
dressing, and caring for oneself.

• The ADA also prohibits discrimination against a qualified individual

because of a known or perceived disability of an individual with
whom the qualified individual has a relationship or association .
 ADA AND ADAAA
• Title I of the ADA covers:
– Medical Examinations and Inquiries
• Employers may not ask job applicants about the existence, nature, or severity of a
disability.
• Applicants may be asked about their ability to perform essential job functions.
• A job offer may be contingent upon the results of a medical examination but only if the
examination is required for all entering employees in similar jobs.
• Medical examinations of employees must be job-related and consistent with the
employer’s business needs.

– Drug and Alcohol Abuse

• Employees and applicants currently engaging in the illegal use of drugs are not
covered by the ADA when an employer acts on the basis of such use.
• Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations.
• Employers may hold illegal drug users and alcoholics to the same performance
standards as other employees.
 ADA AND ADAAA
• It is also unlawful to retaliate against an individual for:
– Opposing employment practices that discriminate based on
disability;
– Filing a discrimination charge; or
– Testifying or participating in any way in an investigation,
proceeding, or litigation under the ADA.
 ADA AND ADAAA
• Reasonable Accommodation
– Engaging in reasonable accommodation means modifying or adjusting a job
application process, a work environment, or the circumstances under which a job
is usually performed to enable a qualified individual with a disability to be
considered for the job and perform its essential functions.

– The reasonableness of any particular accommodation must be considered on a

case-by-case basis; however, some examples of potential reasonable
accommodations are:
• Assigning a reader to help an applicant who is visually impaired
• Constructing ramps or providing a wheelchair-accessible desk
• Lowering counters or drinking fountains
• Designing alternative formats for employee training
• Providing a telephone device for a person who is hearing-impaired
• Providing alternate work schedules
• Providing unpaid leave to an employee who requires it due to disability
 ADA AND ADAAA
• Reasonable Accommodation (cont.)
– Employers are not required to provide reasonable
accommodation to individuals who associate with a person with
a disability or who are regarded as but do not actually have a
disability.
– Steps in identifying a reasonable accommodation:
1. Individual asks for accommodation or employer knows of the need for an
accommodation.
2. Identify the barriers to performance of essential job functions for the
individual.
3. Identify possible accommodations that might be helpful in overcoming the
barriers.
4. Assess the reasonableness of the accommodations including whether they
are the employer’s responsibility and whether they impose an undue
hardship.
5. Choose the appropriate accommodation for the individual.
 ADA AND ADAAA
• Reasonable Accommodation (cont.)
– Identifying a reasonable accommodation is an interactive process between the
employer and the employee requesting or needing the accommodation.

– In 2011, Verizon reached an agreement to settle a disability discrimination class-

action lawsuit brought by the EEOC. The lawsuit alleged that Verizon unlawfully
denied reasonable accommodation to hundreds of employees. The company had
failed to make exceptions to attendance plans to accommodate employees with
disabilities, and it had disciplined employees for missing a certain number of
shifts without allowing absences caused by disabilities to be excused.
 ADA AND ADAAA
• Undue Hardship
– The ADA does not require employers to take actions that involve undue hardship.
– Factors in deciding whether accommodation imposes an undue hardship are:
• The nature and net cost of the accommodation.
• The overall financial resources of the facility or facilities involved in the provision of the
reasonable accommodation, the number of persons employed at such facility, and the
effect on expenses and resources.
• The overall financial resources of the covered entity, the overall size of the business of
the covered entity with respect to the number of its employees, and the number, type,
and location of its facilities.
• The type of operation or operations of the covered entity, including the composition,
structure, and functions of the workforce of such entity, and the geographic
separateness and administrative or fiscal relationship of the facility or facilities in
question to the covered entity.
• The impact of the accommodation upon the operation of the facility, including the
impact on the ability of other employees to perform their duties and the impact on the
facility’s ability to conduct business.
 ADA AND ADAAA
• The ADA Amendments Act (ADAAA) of 2008 overturned several
U.S. Supreme Court decisions that narrowly interpreted the
definition of disability.
• While the ADAAA retains the basic definition contained in the ADA, it
expands the interpretation of these elements, making it much easier
for individuals seeking the law’s protection to demonstrate that they
meet the definition of disability.
• ADAAA regulations provide the nine rules of construction shown in
the table below to guide the analysis of what constitutes a disability.
– “Construction” here is a legal term that means interpretation.
– See Exhibit 39
– The intent of the rules of construction is to set forth predictable, consistent, and
workable standards to use when determining if an individual is substantially
limited in performing a major life activity.
 ADA AND ADAAA
• The act specifically states that homosexuality, bisexuality,
transvestitism, and compulsive gambling are not physical or mental
impairments.
 WORKPLACE HARASSMENT
• Per the EEOC, harassment becomes unlawful in the
following situations:
• When enduring offensive conduct becomes a condition of
continued employment
• When the conduct is severe or pervasive enough to create a
work environment that a reasonable person would consider
intimidating, hostile, or abusive
• When an individual is harassed in retaliation for filing a
discrimination charge, testifying, or participating in any way in an
investigation, proceeding, or lawsuit
• Note that the harassment must pertain to a prohibited
ground of discrimination.
 WORKPLACE HARASSMENT
• Sexual Harassment
– EEOC guidelines state that “…unwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a sexual
nature constitute sexual harassment when:
• Submission to such conduct is made either explicitly or implicitly a term or condition of
an individual’s employment; or
• Submission to or rejection of such conduct by an individual is used as the basis for
employment decisions affecting such individuals.”
– Note:
• The victim as well as the harasser may be a woman or a man. The victim does not
have to be of the opposite sex.
• Unlawful sexual harassment may occur without economic injury to or discharge of the
victim.
• The harasser’s conduct must be unwelcome.
 WORKPLACE HARASSMENT
• Sexual Harassment claims fall into two categories:
• Quid pro quo means “this for that” or “something for something.” Quid pro
quo harassment occurs when an employee is forced to choose between giving in
to a superior’s sexual demands and forfeiting a benefit. The benefit may be
economic in nature, such as a pay increase or continued employment, or it may
be noneconomic, for example, a better shift. It can also be an offer for a trade of
such a benefit with no resulting benefit actually being exchanged.

• Hostile environment harassment occurs when sexual or other discriminatory

conduct is so severe and pervasive that it unreasonably interferes with an
individual’s performance; creates an intimidating, threatening, or humiliating work
environment; or perpetuates a situation that affects the employee’s psychological
well-being.
 WORKPLACE HARASSMENT
• Important U.S. Supreme Court Sexual Harassment cases:
– Faragher v. City of Boca Raton (1998)
• Addressed employer liability for the acts of a supervisory employee whose
sexual harassment of subordinates has created a hostile work environment
amounting to employment discrimination.
• The court held that "an employer is vicariously liable for actionable
discrimination caused by a supervisor, but subject to an affirmative defense
looking to the reasonableness of the employer's conduct as well as that of a
plaintiff victim.”
• Vicarious liability is a legal doctrine under which a party can be held liable for
the wrongful actions of another party.
– Because of this doctrine, employers are legally responsible for the discriminatory acts of their
supervisors and managers and, in some circumstances, for their nonsupervisory employees as
well.
 WORKPLACE HARASSMENT
• Important U.S.S.C. Sexual Harassment cases (cont.):
– Burlington Industries, Inc. v. Ellerth (1998)
• Also addressed hostile work environment sexual harassment by a supervisor
and introduced a two-part affirmative defense allowing employers to avoid
sex discrimination liability if they can prove that:
1. the employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, and that
2. the employee unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer or to avoid harm otherwise.
 WORKPLACE HARASSMENT
• Note: SHRM omits the following important details of employer
liability:
– An employer is automatically liable for quid pro quo sexual harassment by a
supervisor and there is no affirmative defense.
• This is referred to as absolute liability.
– An employer is automatically liable for hostile work environment sexual
harassment by a supervisor but there is an affirmative defense (as set out in
Burlington).
• This is referred to as strict liability.
– An employer is not automatically liable for hostile work environment sexual
harassment by a coworker. The complainant must prove the employer was
negligent in controlling working conditions.
 WORKPLACE HARASSMENT
• To reduce liability for harassment claims, a company should:
• Train both employees and managers on a regular basis.
• Oblige employees to report any incidents of harassment.
• Investigate reported allegations promptly and thoroughly.
• Implement corrective measures when necessary.

• Note: SHRM speaks only to limiting employer’s liability for sexual

harassment and not to actually preventing sexual harassment from
occurring. 🤬
 WORKPLACE HARASSMENT
• Sexual Orientation Guidelines
– It is important to note that while there is no federal statute governing sexual
orientation, the EEOC has expressly stated that it is covered by Title VII.
• Some federal courts have concluded that a claim under Title VII for sex discrimination
could be based upon the plaintiff’s sexual orientation, gender identity, gender
expression, and/or gender stereotyping.
• Some state and local laws do prohibit sexual orientation discrimination.
• In addition, a number of states and local jurisdictions have extended their civil rights
law to include gender identity, which may protect transsexuals and other transgendered
persons.
• However, even in those states or local jurisdictions in which there is no protection
based on gender identity, there may be some protection under Title VII case law
involving gender stereotyping.
– Note: The above material is outdated. In 2020, the U.S. Supreme Court deemed
sex discrimination under Title VII to include sexual orientation and gender
identity. (I’ve included it because SHRM has not updated their content.)
 WORKPLACE HARASSMENT
• Sexual Orientation Guidelines (cont.)
– Measures Employers Can Take to Help Ensure Fair Workplace
• Include sexual orientation in nondiscrimination policies.
• Provide training.
• Prohibit and prevent harassment of lesbian, gay, bisexual, and transgender employees.
• Recognize organizations representing the interests of lesbian, gay, bisexual, and transgender
employees.
• Refer to “sexual orientation” rather than “sexual preference.”

– Employers also need to be sensitive to the religious beliefs of some who may
oppose the protection.
• An employer can regulate workplace conduct (prohibit discrimination, harassment, etc., inconsistent
with its policies) but must be careful not to try to dictate beliefs on this sensitive issue.

– In October 2017, the EEOC announced new training programs on “Respectful

Workplaces” for employees and supervisors.
• Link below is provided for informational purposes only.
• https://www.eeoc.gov/training-institute/harassment-prevention-and-respectful-workplaces-training
 WORKPLACE HARASSMENT
• Employer Responses to Harassment
– EEOC Guidelines state that harassment policy/prevention programs should:
• Be in writing.
• Define what constitutes harassment and declare that it will not be tolerated.
• Establish a complaint procedure that encourages employees to come forward.
• Involve training and education programs to focus on the specific culture and needs of a
particular workplace.
• Provide workplace civility and bystander intervention training.
• Include a prompt and thorough investigation of every complaint and ensure that
employees have confidence in the process.
• Provide for an investigation that results in corrective action if it is determined that
unlawful harassment has occurred.
• Use a variety of methods to communicate the policy to management and employees.
 WORKPLACE HARASSMENT
• Employer Responses to Harassment (cont.)
– A written harassment policy should include concrete examples of inappropriate
behaviors. A few such examples might be:
• Derogatory remarks about a person’s membership in a protected class.
• Visual messages (for example, posting of cartoons) that are demeaning to a protected class.
• Jokes that stereotype or make fun of a protected class.
• Nicknames for protected classes.
• Verbal or nonverbal (for example, mimicking or imitating) innuendoes that have a negative
connotation for a protected class.

– Further, it should be stated that the harassment policy applies not only to the
workplace during normal hours of operation but to all aspects of “work,” including
organizational travel and all work-related functions, even if such activities are
held off site. This includes after-hours cell phone and media use.
 GINA
• Genetic Information Nondiscrimination Act
– The Genetic Information Nondiscrimination Act (GINA) of 2008 prohibits
discrimination against individuals on the basis of their genetic information in both
employment and health insurance.
– Employment decisions based on genetic information are inappropriate because
genetic information does not tell the employer anything about an individual’s
current ability to work.
– GINA prohibits an employer from discriminating against an individual in any
aspect of employment, including hiring, firing, pay, job assignments, promotions,
layoffs, training, fringe benefits, or any other term or condition of employment, on
the basis of genetic information about the individual or a family member of the
individual.
– Covered employers are those with 15 or more employees and include state and
local governments.