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By: Richard D. Glovsky, Locke Lord LLP.
THIS ARTICLE ADDRESSES PROTECTED STATUS HARASSMENT issues, a subset of discrimination claims that arise where an employee alleges that he or she was subjected to unwelcome conduct in the workplace due to the employee’s protected status (race, sex/gender, age, disability, national origin, etc.). It focuses on the elements of these claims and defenses to them. It also provides practical tips that employers can follow to address, defend, and avoid harassment claims.
Most harassment allegations assert that the employer created a hostile work environment that negatively impacted the terms and conditions of an employee’s employment. But it is important for employers to remember that not all harassment is illegal. Most federal and state laws only prohibit harassment that is “severe or pervasive.” One, or even a few, questionable incidents do not usually amount to unlawful harassment.
Many employees do not understand that not all harassment is illegal; it must be premised upon a particular protected category. Federal law, for example, prohibits harassment based on the following grounds:
Many state jurisdictions have their own equal employment opportunity (EEO) laws that protect employees who fall into additional protected categories. For example, many states and the District of Columbia have enacted laws prohibiting discrimination on the basis of sexual orientation. To cite another example, Michigan bans discrimination on the basis of height and weight.
Localities have also adopted categorical protections. For instance, New York City protects the unemployed from discrimination, while Broward County in Florida prohibits discrimination on the basis of political affiliation.
Because protected classifications vary from state to state and even city to city, when advising employers about potential harassment claims, you should be familiar with the laws of each state, county, and municipality where the employer is located.
Generally, there are two types of unlawful harassment:
To read the full practice note in Lexis Practice Advisor, follow this link.
Richard D. Glovsky, a partner in Locke Lord’s Boston office, co-chairs the firm’s robust Labor and Employment Practice Group. He handles employment litigation, including class actions, wage and hour issues, and discrimination and retaliation claims; prosecutes cases for Fortune 500 companies and other businesses to protect their trade secrets and to prevent former employees from violating non-competition and non-solicitation obligations; and is a valued counselor on employment related matters. He is a former Assistant United States Attorney and Chief of the Civil Division of the United States Attorney’s Office for the District of Massachusetts.
For a discussion of state EEO laws, see
> CHART – STATE PRACTICE NOTES (DISCRIMINATION AND RETALIATION)
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > Claims and Investigations > Practice Notes > State Discriminationand Retaliation Practice Notes
For information on best practices for complying with Title VII of the Civil Rights Act of 1964, see
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > EEO Laws and Protections > Practice Notes > Title VII and the Pregnancy Discrimination Act
For guidance for employers to comply with the Age Discrimination in Employment Act (ADEA), see
> ADDRESSING THE ADEA’S MANDATES
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > EEO Laws and Protections > Practice Notes > Age Discrimination inEmployment Act
For an examination of the scope of the protection against discrimination found in 42 U.S.C. § 1981 and the damages available to successful plaintiffs, see
> SECTION 1981 EMPLOYMENT DISCRIMINATION CLAIMS
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > EEO Laws and Protections > Practice Notes > Section 1981
For a thorough discussion on the claims under, defenses available, and compliance with and enforcement of the Americans with Disabilities Act of 1990 (ADA), see
> AMERICANS WITH DISABILITIES ACT: NAVIGATING EMPLOYER REQUIREMENTS ANDMAKING REASONABLE ACCOMMODATIONS
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > EEO Laws and Protections > Practice Notes > Americans with Disabilities Act
For more detail on disparate treatment claims, see
> UNDERSTANDING DISPARATE TREATMENT
RESEARCH PATH: Labor & Employment > Discrimination and Retaliation > EEO Laws and Protections > Practice Notes > Disparate Treatment