Employment Litigation

Sexual Harassment

Sexual harassment is a type of sex discrimination that defies Title VII of the Civil Rights Act of 1964. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature where a person’s employment is affected because the employee submitted to or rejected the unwelcome conduct, or if the conduct unreasonably interferes with an individual’s work performance or creates a hostile work environment. Title VII addresses employers with at least 15 employees, including those in state and local government, as well as elements of the federal government.

Hostile Work Environment

A hostile work environment is one form of harassment in the workplace, where conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. A hostile work environment is also frequently referred to as an intimidating work environment, offensive work environment, abusive work environment, or hostile workplace.

There are three major forms of harassment: verbal, nonverbal, and physical.

Physical Harassment

• Gratuitous physical contact against someone’s will (i.e. pinching, brushing up against, hugging)
• Sexual assault (i.e. attempting to touch someone’s breasts or genitals)
• Pushing, shoving, or jostling. Placing your hand or object into someone’s pocket

Retaliation after Workplace Harassment

Under Title VII, it is illegal for an employer or other employee to retaliate against any individual who:

• Disagrees with employers that discriminate based on sex, gender, race, religion or any other protected class
• Files a discrimination charge
• Offers testimony or partakes in an investigation or court proceeding

Employees should not fear reporting harassing conduct, as employers are prohibited against retaliating against any individual that makes a report of harassment to the EEOC.

Employer Retaliation

State and federal labor laws strictly forbid employers from retaliating against employees for a variety of actions. It is illegal to terminate, demote, harass, refuse promotion, alter benefits, change job assignments, or otherwise retaliate against an individual for filing a complaint or lawsuit against an employer for discrimination or harassment, or to receive deserved benefits under various labor laws.

In addition, federal law protects whistleblowers who report fraud against the government under the False Claims Act. Employees who were wrongfully retaliated against may have legal recourse through a labor and employment lawsuit.

Laws Protecting Workers from Retaliation

In addition to specific company policies on retaliation, state and federal labor laws forbid employer retaliation against employees for any of the following:

• Reasonably exercising their rights under the law
• Reporting suspected employer violations to the proper jurisdiction (e.g., government agencies who uphold the laws)
• Participating in court proceedings as a plaintiff or witness

Discrimination & Harassment

Employment and labor laws prohibit unfavorable or unfair treatment of an applicant or employee based on race, color, religion, sex, national origin, disability, or age. Federal law forbids “discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.”

Employment policies or practices applicable to all employees may be illegal if they have “a negative impact on the employment of people of a particular class and is not job-related and necessary to the operation of the business.”

Sexual Discrimination

Under the Equal Pay Act of 1963, employers are prohibited from discriminating on the basis of an employee’s sex in the payment of wages. Employees of different sexes may not be denied equal compensation for performing substantially equal work in the same establishment. However, sexual discrimination does not only apply to wages. Some other examples of sexual discrimination include:

• Hiring (e.g. an applicant, with excellent credentials and qualifications is denied employment on the basis of sex)
• Firing (e.g. a female employee is let go due to “cutbacks,” while a male employee with less seniority remains employed)
• Promotion (e.g. female employee who has been with a company for a long time is passed over for a promotion for a male with less experience)

Age Discrimination

The Age Discrimination in Employment Act of 1967 protects employees over the age of 40 from discrimination in the workplace. Under the Act, employers are prohibited from:

• Refusing to hire or discharge an employee;
• Offering different compensation, terms, or conditions of employment; and
• Limiting, segregating, or classifying an employee in a way that would adversely affect their employment opportunities.

Disability Discrimination

Titles I and V of the American with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973 prohibits employment discrimination of qualified individuals due to a disability. This applies to both private and government positions. Acts of discrimination based on disability may include:

• Denying an aid, benefit, or service that is provided to other employees;
• Providing different aids, benefits, or services unless necessary;
• Denying the opportunity to participate as a member for a planning or advisory board;
• Imposing eligibility criteria that screen out those with disabilities, unless vital to the execution of the position; or
• Administering programs, services, and activities that do not meet the needs of qualified individuals with disabilities.