Discrimination and Harassment

Discrimination and Harassment

Don’t Let Your Workplace Turn into a Saloon
By Arthur C. Johnson II, Partner, Johnson, Stracci & Ivancevich, LLP.

A common motif in Western films is the loudmouth in the saloon. Typically, the loudmouth harasses the wrong person and stops talking right around the time he’s been shot dead. While loudmouths today are not likely to be killed, having a loudmouth in the workplace can kill the work environment. This is particularly true when dealing with discrimination and harassment. Judge Roy Bean, a famous Old West judge, stated, “[n]ever miss a good chance to shut up.” When it comes to loudmouths in the workplace, having them remember this handy advice will help avoid discrimination and harassment in the workplace. While this article is not all-encompassing, nor should it be considered legal advice on the topic discussed, we want you to avoid killing your workplace environment.

Putting one’s boot in their mouth is definitely easier than removing it. Those spurs tend to get caught. In the workplace, individuals often say something without thinking, more so if there’s a loudmouth in the workplace. This can happen that much more easily now due to technology. Employers can take measures to avoid “letting the cat out of the bag,” as well as putting systems in place to help put it back in.

The means by which discrimination and harassment occur in the workplace have changed with increased use of digital communication, but its occurrence has not. Today, discrimination and harassment occurs through emails, social media, cell phones, and other electronic means. It can occur between employees without anyone else in the workplace knowing. However, this also increases the likelihood that hard proof will exist of the discrimination and harassment. It is much easier to be a loudmouth today because it can be done behind the perceived cover of the internet. Loudmouths are more difficult to immediately identify, however, the consequences to an employer are no less severe if such employees are not identified and their conduct remedied.

In Indiana, an individual may claim discrimination generally due to his or her race, color, religion, national origin, veteran status, sex, age, pregnancy, or physical or mental disability. Discrimination can be proven under one of two methods. The direct method is utilized when the discrimination is overt, e.g. the employer disciplines an employee, and states explicitly that the reason is because of the employee’s race, sex, etc. Generally, this type of discrimination does not occur that often. The second method of proving discrimination uses the following burden shifting test: the employee must first establish a prima facie case of race discrimination by showing that (1) the employee is a member of a protected class; (2) the employee was meeting his/her employer’s legitimate performance expectations; (3) the employee suffered an adverse employment action; and (4) other similarly situated employees who were not members of the protected class were treated more favorably. If the employee is able to make a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its decision. The burden then shifts to the employee again to show that the employer’s reason for its decision was pretextual.

Employers should have written policies regarding discrimination. If policies are already in place, they should be updated or expanded to include new methods of electronic and online discrimination. An employer’s decisions should not be based on an employee belonging to any of the above classes of individuals. An employer should notify employees that its decisions will not be made based upon those factors; importantly, its actions should match its words. If the employer’s actions do not match its policies, the employer may as well squat with their spurs on, which cannot feel too good, though I would not know from personal knowledge.

More often than overtly discriminating against co-workers or employees, loudmouths in the workplace harass co-workers and create a hostile environment. For a harassment/hostile environment claim to be brought, an employee must show: (1) that the work environment was both subjectively and objectively offensive; (2) that the harassment was based on membership in a protected class; (3) that the conduct was severe or pervasive; and (4) that there is a basis for employer liability. A court may consider the following factors when determining whether an environment was hostile or abusive: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating or merely an offensive utterance; (4) whether the alleged harassment unreasonably interfered with the plaintiff’s work performance. Not every unpleasant workplace is a hostile environment. The occasional vulgar banter, of course, or boorish workers would be neither pervasive nor offensive enough to be actionable. However, the U.S. Supreme Court has established that “something short of the Ninth Ring may violate” discrimination laws.1

Just as with discrimination, employers should have written policies in place prohibiting harassment, including harassment that occurs online and through social media. Employers should also have a system in place that allows employees to report harassment, as well as investigating the alleged harassment. If harassment is found to have occurred, then the employer should take appropriate actions to remedy it. Implementing a fair and impartial system by which employees can report harassment, as well as a means to investigate and remedy harassment generally, will insulate the employer from liability.

The advice here is that if you find yourself in a hole, the first thing to do is stop digging. If you do not have policies and procedures in place, create and implement them, or find someone to assist you in doing so. If you have loudmouthed employees, correct their behavior when appropriate. The difference between the loudmouths of the Old West, and loudmouths in the workplace is that when reckoning came in the Old West, the loudmouth was the only one to get shot. When the reckoning comes in today’s workplace, the employer will likely get shot along with the loudmouth. That is why it is better for the employer to have on a bullet proof vest (policies and procedures) to avoid unwarranted injury.

 

1) Jackson v. Cnty. of Racine, 474 F.3d 493, 500 (7th Cir. 1 2007) (citing Harris, 510 U.S. at 22).

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