HARASSMENT, DISCRIMINATION AND RETALIATION Hope Curtis Hicks WEBB & ELEY, P.C. Post Office Box 240909 Montgomery, Alabama 36124 (334) 262-1850 hhicks@webbeley.com

SCENARIO ONE: Elise is an administrative assistant in the County Engineer’s Office. She is attractive and young. Every time Fred, who works on the road crew, comes into the office, she tells him how cute he looks in his uniform. One day, she invites him to dinner. He refuses, saying that he doesn’t think it’s a good idea for co-workers to date, and tells her that she is making him uncomfortable. The next day, she asks him out again, and tells him that, if he goes out with her, she can make sure that all the best equipment gets assigned to him, and that he has his choice of shifts, but, if he doesn’t, she’ll make sure he has to work every holiday. He agrees to go out with her. Has Elise sexually harassed Fred?

SCENARIO TWO: Trevor is a supervisor in the Probate Office. Lynn, one of his employees, is often late to work. After several warnings, Trevor writes up Lynn and gives her a one-day suspension. When Lynn’s co-worker Shawn hears about the write up, he tells Samantha, another co-worker, that he isn’t surprised because he went to high school with Lynn, and she’s always late for everything. Shawn then makes a joke about how Lynn will probably be late for her own funeral. When Lynn comes back to work, Samantha mentions the joke to her, and Lynn gets upset. She complains to Trevor about the joke, but he refuses to hear her complaint and tells go back to work. Has Lynn been harassed or discriminated against? Was Trevor’s reaction correct? What if Shawn told Samantha that he wasn’t surprised Lynn was late because she’s a woman, and everybody knows that women can’t be on time for anything?

SCENARIO THREE: Steve Yuan is a county commissioner who is conducting interviews for a road supervisor position. While interviewing Will, a candidate who is qualified for the position, Steve notices that Will has a slight accent and asks where he is originally from. Will says that his family moved to America from Saudi Arabia when he was about 8. He also says that “Will” is a shortened, Americanized version of his name. Upon learning this information, Steve asks Will if he is a terrorist, and how he plans to get any work done if he always has to stop and pray to Mohammad. Will is not hired for the position. Has he been discriminated against?

Harassment and Discrimination: Applicable Laws Title VII of the Civil Rights Act of 1964 Age Discrimination in Employment Act Americans with Disabilities Act Genetic Information Non-Disclosure Act Equal Pay Act 42 U.S.C. § 1981 First Amendment (public employers) Fourteenth Amendment (public employers) USERRA

State Laws: Anti-Discrimination Laws Alabama does not have any special anti-discrimination laws; however, behavior forbidden by the anti-discrimination laws may also be considered: Civil assault and battery or an invasion of privacy Criminal assault and battery, sexual assault, or rape

Harassment and Discrimination: Protected Classes May not harass or discriminate against an employee because of the employee’s: Age (ADEA) Gender, including pregnancy (Title VII; EPA; 14th Amendment) Race/Color (Title VII; 14th Amendment; 42 U.S.C. § 1981)

Harassment and Discrimination: Protected Classes May not harass or discriminate against an employee because of the employee’s: Religion (Title VII; 14th Amendment) Disability (ADA) Genetic Conditions (GINA) National Origin (Title VII)

Harassment and Discrimination: Protected Classes In addition, public employers may not discriminate or harass employees who exercise their First Amendment rights of speech or association.

Harassment and Discrimination: What Behavior is Prohibited? Treating people differently on the basis of a protected characteristic Harassment Words, conduct, or action (usually repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

Prohibited Behavior: Discrimination “Adverse Employment Action:” Refusal to hire Failure to Promote Termination Suspension Demotion Other material changes in terms and conditions of employment

Prohibited Behavior: Harassment Quid Pro Quo Submission to such conduct is made either an expressed or implied term or condition of an individual’s employment; or, Submission to or rejection of such conduct by any individual is used as the basis for employment decision affecting an individual. Hostile Work Environment Interferes with the individual’s work performance or creates a hostile, intimidating, or offensive work environment.

Prohibited Behavior: Harassment Harassment can take a variety of forms: verbal, visual, written or physical. May include “jokes,” pictures, cartoons, statements, etc. May be done by supervisors, co-workers, other members of the public. Those forced to witness harassment may also be victims.

Prohibited Behavior: Harassment “But he was just joking!” How would you feel if somebody made that kind of joke to your spouse or child? Would you do it in front of your momma? Your pastor? Your kids? If the behavior in question is inappropriate in front of these people, it is inappropriate for the workplace!

Prohibited Behavior: Retaliation May not retaliate against an employee who reports alleged harassment or discrimination. Retaliatory behavior is broader than an adverse employment action and includes any behavior that would tend to discourage employees from reporting harassment or discrimination.

Reporting Responsibilities Follow the policy, and encourage your employees to do the same. Don’t wait for Complaints!

Reporting Responsibilities If you are involved in an investigation: Who, what, when, where, why, and were there any witnesses? He said/She said situations RECORDS ARE CRUCIAL.

Anti-Discrimination Laws: Legal Framework You may be contacted by the EEOC or VETS (Veteran’s Employment and Training Service) EEOC is quasi-independent agency with ability to litigate claims under Title VII, ADEA, ADA and GINA

SCENARIO ONE: Elise is an administrative assistant in the County Engineer’s Office. She is attractive and young. Every time Fred, who works on the road crew, comes into the office, she tells him how cute he looks in his uniform. One day, she invites him to dinner. He refuses, saying that he doesn’t think it’s a good idea for co-workers to date, and tells her that she is making him uncomfortable. The next day, she asks him out again, and tells him that, if he goes out with her, she can make sure that all the best equipment gets assigned to him, and that he has his choice of shifts, but, if he doesn’t, she’ll make sure he has to work every holiday. He agrees to go out with her. Has Elise sexually harassed Fred?

SCENARIO TWO: Trevor is a supervisor in the Probate Office. Lynn, one of his employees, is often late to work. After several warnings, Trevor writes up Lynn and gives her a one-day suspension. When Lynn’s co-worker Shawn hears about the write up, he tells Samantha, another co-worker, that he isn’t surprised because he went to high school with Lynn, and she’s always late for everything. Shawn then makes a joke about how Lynn will probably be late for her own funeral. When Lynn comes back to work, Samantha mentions the joke to her, and Lynn gets upset. She complains to Trevor about the joke, but he refuses to hear her complaint and tells go back to work. Has Lynn been harassed or discriminated against? Was Trevor’s reaction correct? What if Shawn told Samantha that he wasn’t surprised Lynn was late because she’s a woman, and everybody knows that women can’t be on time for anything?

SCENARIO THREE: Steve Yuan is a county commissioner who is conducting interviews for a road supervisor position. While interviewing Will, a candidate who is qualified for the position, Steve notices that Will has a slight accent and asks where he is originally from. Will says that his family moved to America from Saudi Arabia when he was about 8. He also says that “Will” is a shortened, Americanized version of his name. Upon learning this information, Steve asks Will if he is a terrorist, and how he plans to get any work done if he always has to stop and pray to Mohammad. Will is not hired for the position. Has he been discriminated against?