Unit 3: Workplace Harassment and Employer Liability

is a form of discrimination that violates Title VII, the ADEA, and the ADA (EEOC). It is defined as unwelcome conduct based on race, color, religion, sex (including pregnancy), national origin, age (over 40), disability or genetic information

Harassment becomes unlawful when:2

Types of harassment 2

: harassment resulting in tangible employment actions/ submission to or rejections of unwelcome sexual conduct is used as a basis for employment decisions

are generally those with an economic effect on employees and job applicants, such as not being fired, being demoted, not being promoted, or a change in pay or economic benefits.

when the presence of harassing conduct in the workplace harms an employee’s employment environment, making the environment hostile, offensive or abusive./ unwelcome sexual conduct unreasonably interferes with an individual’s job performance or creates an intimidating, hostile, or offensive working environmen

Victims of harassment include:

The individual harasser is not liable for paying for the harm caused to the persons who are harassed. Employer is automatically liable for quid pro quo harassment by a supervisor if it results in things such as:
— Termination
— Failure to promote
— Failure to hire
— Lost wages

Employer is automatically liable for quid pro quo harassment by a supervisor if it results in things such as: 4

if the employer knows or should have known about the harassment and fails to take action to stop it

Employer might be liable if the harassment creates a

The employer may not be liable for hostile work environment harassment if it can prove: 3

Employers can be liable for hostile work environment harassment committed by contractors, visitors, or customers onsite if:

It is also unlawful for an organization to retaliate against any employee that alleges harassment

Generally speaking, there are three logical elements to a retaliation claim 3

Defenses to harassment claims

not frequent or severe enough to cause unreasonable interference with work performance

term used to refer to unauthorized reporting or disclosure of confidential information in institutional settings to protect the public interest. Employee conduct aimed at exposing wrongdoing that has negative consequences for the public, not just for the organization’s employees (not just retaliation against their employer)

steps outside the approved channels of communication to disclose information to an audience who normally would not be entitled to it

Public interest includes 5

: steps are taken to bring conduct to light

refusal to participate in wrongdoing

Reporting of misconduct in whistleblowing can be either be from:

Whistleblowing criteria: 3

Whistleblower laws protect employees who report employer conduct
that harms the public. Most of the protections for whistleblowers are found in state laws. Several federal laws also protect whistleblowers. THE major protection in the laws is that employers may not retaliate or otherwise discriminate against a whistleblower.

Whistleblower statutes- federal:
Three general categories

3 categories
protected activity
materially adverse action

: Mostly cover violations of public health, safety, and welfare laws, and consumer and financial laws. Some states also provide protections to state employees who report gov’t waste, mismanagement or ethical violations. Prohibited employer actions vary state to state

Prohibited conduct for whistleblowing 11

Who is protected under whistleblower laws? Questions: 4

Prohibits adverse action against a public employee who:
• in good faith reports a violation of law by the employing [city] or another public employee
• to an appropriate law enforcement authority

Genuinely believe that a law has been broken. The belief must be supported by subjective and objective data

Appropriate persons to report to under the Texas Whistleblower Act: 2

Logically, internally-focused whistleblowing is preferable to externally- focused. So, how do we encourage employees to internally report wrongdoing? Organizations DO HAVE cultures and these are very real even if we can’t touch or see them

: The set of beliefs, values, and norms, together with symbols and personalities, that represents the unique character of an organization, and provides the context for action in it and by it." - Gareth Morgan
These patterns are stereotypic assumptions, inventions, and/or discovered by employees
• When a pattern works or when people THINK it works, it becomes part of the “institutional memory”
• These patterns are then taught to new organizational members through formal and informal processes

What feeds a whistleblowing culture 7

Barriers to whistleblowing: 6

What should we deal with whistleblowing 5

The Congress recognized that employees face a lack of employment policies that accommodated their roles as parents and caregivers, and that employees with serious health conditions lacked job security. In particular, Congress noted that women were disproportionately affected by the lack of leave policies because of societal gender imbalances when it comes to parenthood and other caregiving responsibilities.

5 purposes for FMLA

covered employer for FMLA 3

eligible employee for FMLA

Up to 12 weeks of leave for: 4

Up to 24 weeks of leave for:

Your own or a close family member’s physical or mental conditions along with being inpatient care or continuing treatment.

Intermittent leave: 2

Medical need 3

general notice explaining FMLA provisions and procedures

an employee is not required to expressly tell the employer that the leave is for FMLA-qualifying reason the first time the employee request it. 30 days in advance of the leave or as soon as practicable.

Employer obligations During leave 2

employer obligations after leave 3