Harassment and Workplace Discrimination

Workplace discrimination and harassment are very serious offenses and should be treated as such, both for the benefit of the employees and the legal protection of the employer. All organizations should have clear and defined policies and procedures regarding the reporting and handling of harassment and discrimination claims.

Concrete Action Steps

Establish Policies and Procedures

Have anti-discrimination and anti-harassment policies and reporting procedures in place, as well as mandatory harassment prevention training (required by the Illinois Human Rights Act). Make sure your policy defines discrimination and harassment, clearly states that your company is committed to a workplace free of discrimination and harassment, and lays out an easy-to-use procedure for reporting workplace discrimination or harassment. Failure to do so could make you automatically liable if one of your employees discriminates against or harasses another. Make sure your harassment prevention training complies with the Illinois Human Rights Act – the state has released a model harassment prevention training that employers can use, available on the Illinois Department of Human Rights’ website.

Provide Reasonable Accommodations

Provide reasonable accommodations for employees with disabilities. “Reasonable” means it must effectively meet the needs of the individual without imposing an undue hardship on the employer. An accommodation is not reasonable if it requires significant difficulty or expense, is unduly extensive or disruptive, or would fundamentally alter the nature or operation of the business.

Best Practices

Employers should take time to establish policies and procedures to ensure they adhere to the terms of Title VII and the ADA, as well as promote a safe and inclusive workplace for all employees. The EEOC suggests some best practices for employers, and we’ve compiled our advice below as well.

Monitor the Workplace

Have people or systems in place to keep an eye on employee relationships. These could be:

An anonymous survey conducted regularly.
An individual who surveys the workplace once a week or so (unannounced) to watch interactions.
An individual that interviews employees regularly to ask about employee relations.
Individuals whose job responsibilities include reporting possible incidents.

Implement Reporting Policies

Adopt a strong anti-harassment policy, educate employees on its contents, and follow and enforce it. The policy should be clearly delineated in your employee handbook. How should an employee report workplace discrimination or harassment, and to whom? Designate at least two specific people and include their contact information. Investigate and resolve all complaints in a timely manner, even if you were not notified according to company procedure. Make sure to be sensitive but impartial and make every effort to maintain confidentiality.

Understand Reasonable Accommodations

Understand the process for requesting a reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) outlines how to request a reasonable accommodation, and we recommend you review their website to familiarize yourself with the process. In general, an applicant or employee must inform the EEOC of the need for an accommodation. The Disability Program Manager (DPM) at the EEOC decides whether to grant or deny their request. If a manager receives a request from an employee, they must send the request to the DPM within two days.

Offer Employee Training

Train all employees on Title VII and the Illinois Human Rights Act. Include definitions and examples of harassment and discrimination. Promote an inclusive culture by fostering an environment of professionalism and respect for personal differences. There are also outside companies that provide organizational trainings and information on implicit bias and discrimination/harassment.

Watch Your Words

Carefully structure job posts and interview questions to avoid any potential claims of hiring discrimination. See our article on proper hiring procedures for a more detailed overview.

Don’t Retaliate

Title VII also prohibits retaliation against an employee who has “made a charge, testified, assisted, or participated in” any charge of unlawful discrimination.

Discrimination

What Is Discrimination?

Discrimination includes but is not limited to: making any employment decision or employment-related action on the basis of race, color, religion, age, sex, disability, national origin, marital status, sexual orientation, veteran status, or any other status protected by law. Some of these characteristics are protected under Title VII of the Civil Rights Act of 1964, some are protected by various Illinois laws, and even more characteristics are protected by various city and county laws.

The EEOC website provides a helpful overview of the different types of discrimination and facts about retaliation. All employers should be familiar of these types of discrimination and how to ensure best practices within the workplace.

Some specific areas of discrimination covered by law include:

Pregnancy Discrimination

Pregnancy Discrimination Act of 1978 (PDA). The PDA prohibits sex discrimination on the basis of pregnancy, childbirth, or related medical conditions. The PDA only applies to employers with 15+ employees.

Age Discrimination

The Age Discrimination in Employment Act and the Illinois Human Rights Act both protect workers over 40 years of age from age discrimination in employment.

Membership in the Armed Forces

The Uniformed Services Employment and Reemployment Rights Act (USERRA). The USERRA prohibits employers from making any employment decisions based on past or present membership in the uniformed service or an individual’s application to be part of the uniformed service. The USERRA also provides for “reemployment rights” (with certain conditions) for employees who leave a job to perform service.

Hair-Related Racial Discrimination

The CROWN Act, which stands for the Create a Respectful and Open Workplace for Natural Hair Act, amends the Illinois Human Rights Act. It aims to fight discrimination in Illinois by prohibiting hair-related racial discrimination. The law widens the definition of race to include “traits associated with race, including, but not limited to, hair texture with protective hairstyles such as braids, locks, and twists.”

Harassment

What Is Harassment?

Harassment is a form of discrimination. Harassment is generally defined as unwelcome verbal or non-verbal conduct, based upon a person’s protected characteristic, that denigrates or shows hostility or aversion toward the person because of the characteristic, and which affects the person’s employment opportunities or benefits, has the purpose or effect of unreasonably interfering with their work performance, or has the purpose or effect of creating an intimidating, hostile or offensive working environment.

Harassing conduct includes, but is not limited to: epithets; slurs or negative stereotyping; threatening, intimidating or hostile acts; denigrating jokes; and display or circulation of material that denigrates or shows hostility or aversion towards a protected characteristic.

Sexual Harassment

Sexual harassment includes unwelcome sexual advances, requests for sexual favors and other verbal, visual or physical conduct of a sexual nature, when:

Submission to such conduct is made a term or condition of an individual’s employment, either explicitly or implicitly; or
Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Both men and women can be perpetrators or victims of sexual harassment.

Examples of sexual harassment include:

Unwelcome or unsolicited sexual advances;
Displaying sexually suggestive material;
Unwelcome sexual flirtations, advances or propositions;
Suggestive comments;
Verbal abuse of a sexual nature;
Sexually oriented jokes;
Crude or vulgar language or gestures;
Derogatory gender-based language;
Graphic or verbal commentaries about an individual’s body;
Leering;
Display or distribution of obscene materials;
Physical contact such as patting, pinching or brushing against someone’s body;
Physical assault of a sexual nature.

Mandatory Employee Training

Illinois Employers are required to provide sexual harassment prevention training for employees. The training has some specific requirements. For example, it must include an explanation of sexual harassment; examples of harassing conduct; a summary of laws concerning sexual harassment; remedies available to victims of sexual harassment; and a summary of the employer’s responsibilities in preventing, investigating, and taking corrective measures for sexual harassment. The state has released a model harassment prevention training that employers can use, available on the Illinois Department of Human Rights’ website.

Employer Liability

An employer is automatically liable for harassment by a supervisor that results in a “negative employment action” (e.g. termination, failure to promote or hire, loss of wages, etc.).

An employer will also be liable for harassment by a non-supervisory employee or non-employee (a) over whom the employer has control, (b) if the employer knew about the harassment and failed to take “prompt and appropriate corrective action”, or (c) if the employer should have known about the harassment and failed to take “prompt and appropriate corrective action.” This is why it is extremely important for all companies to have reporting procedures in place.

The Americans With Disabilities Act (ADA)

What Is The ADA?

The ADA prohibits discrimination against qualified individuals with disabilities in the application process, hiring and firing, advancement, compensation, fringe benefits, job training and other areas of employment. The ADA does not alter an employer’s right to hire the best-qualified applicant, but it does prohibit discrimination because of an applicant’s disability, whether actual or perceived.

Under the ADA, an applicant or employee is considered to have a disability if they:

Have a physical or mental impairment that substantially limits one or more major life activities; or
Have a record or past history of such an impairment; or
Are regarded or perceived (correctly or incorrectly) as having such impairment.

A qualified employee or applicant is someone who satisfies the essential skill, experience, education and other job-related requirements of the relevant position, and who can perform the essential functions of that position, with reasonable accommodations as needed.

What Is a “Reasonable” Accommodation?

The ADA requires employers to provide reasonable accommodations (i.e. changes or modifications to a workplace, job, or position) to allow employees with disabilities to perform their work. Employers must provide these accommodations unless doing so would cause them an undue hardship.

There are 3 categories of reasonable accommodations:

Modifications or adjustments to a job application process, that enable a qualified applicant with a disability to be considered for the relevant position; or
Modifications or adjustments to the work environment, or the manner or circumstances under which the position is customarily performed, that enable a qualified individual with a disability to perform the position’s essential functions; or
Modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment as other non-disabled, similarly situated employees.

Reasonable accommodations must be provided to all qualified employees, whether they work part-time or full-time. The individual with the disability must inform the employer that an accommodation is needed.

An accommodation is reasonable if it appears to be “feasible” or “plausible” and effectively meets the needs of the individual. If an accommodation requires significant difficulty or expense, is unduly extensive or disruptive, or would fundamentally alter the nature or operation of the business, it would be considered to cause “undue hardship” to the employer and therefore unreasonable.

Examples of reasonable accommodations include:

Installing a ramp
Modifying a restroom
Modifying the layout of a workspace
Ensuring computer software is accessible
Making materials available in Braille or large print
Modifying workplace policy to allow a service animal

Related: