Moberg, Rathbone, Kearns has considerable experience in litigating civil rights claims in federal and state court. This includes defending a number of police departments in 1983 lawsuits, representation of school districts in Title IX claims and representing counties in civil rights-based claims.
Throughout the United States, workplace harassment is an ongoing and prevalent issue, despite federal and state laws prohibiting hostile work environments. It is important to remember that every employee has the right to a harassment and hostile-free workplace.
According to the Equal Employment Opportunity Commission, harassment (that leads to a hostile work environment), is a form of employment discrimination violating Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).
What is a Hostile Work Environment? Simply put, a hostile work environment involves severe and pervasive conduct that permeates the work environment and interferes with an employee’s ability to perform his or her job. Often, the harassment may include some form of discrimination, such as race, color, sex, national origin, religion, age, disability or sexual orientation, or reprisal.
Employers have a certain obligation to maintain a non-hostile work environment, giving each employee the opportunity to succeed and be fully productive. Keep in mind, however, that poor work environments or bad management practices (typically) don’t constitute a hostile work environment, and neither does a boss who may be mean, emotionally volatile, or just plain bad. Instead, a hostile work environment is more of a by-product of specific unlawful acts.
Some examples of a hostile work environment may include:
- The employer can’t fire a certain employee, so he makes the workplace environment hostile in an attempt to make the employee quit
- A union representative harasses an employee to make him/her sign up as a union member
- Employees discuss sexual activities in a hostile and prevalent manner
- Employers or co-workers who tell hostile jokes concerning race, sex, disability, or other protected bases
- Employers or co-workers who display sexually suggestive or racially insensitive images
- Employers or co-workers who use demeaning or inappropriate terms or epithets, indecent gestures, or crude language
- Employers or co-workers who sabotage the victim’s work
- Employers or co-workers who engage in hostile physical conduct
I. What Are the Federal Laws Prohibiting Job Discrimination?
Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin; the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments; Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government; Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.
Other federal laws, not enforced by EEOC, also prohibit discrimination and reprisal against federal employees and applicants. The Civil Service Reform Act of 1978 (CSRA) contains a number of prohibitions, known as prohibited personnel practices, which are designed to promote overall fairness in federal personnel actions. 5 U.S.C. 2302. The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions cannot be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation. The CSRA also prohibits reprisal against federal employees or applicants for whistle-blowing, or for exercising an appeal, complaint, or grievance right. The CSRA is enforced by both the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB).
Additional information about the enforcement of the CSRA may be found on the OPM web site at http://www.opm.gov/er/address2/guide01.htm; from OSC at (202) 653-7188 or at http://www.osc.gov/; and from MSPB at (202) 653-6772 or at http://www.mspb.gov.
II. What Discriminatory Practices Are Prohibited by These Laws? Under Title VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of employment, including: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of company facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and disability leave; or other terms and conditions of employment.
Discriminatory practices under these laws also include: harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age; retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices; employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual’s genetic information; and denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
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