Over the past several months, there has been increased attention on the issue of sexual harassment in the workplace, a form of discrimination based on sex. The U.S. Equal Employment Opportunity Commission (EEOC) has handled a significant number of employment discrimination claims based on sex, with 25,605 claims handled in FY 2017 – equating to 30 percent of all employment-related discrimination claims filed with the Agency that year.
The EEOC is the federal agency responsible for enforcing most of the federal anti-discrimination laws. With regard to unlawful harassment under anti-discrimination laws, the EEOC notes that slights, annoyances, and isolated incidents — unless extremely serious — generally don't rise to the level of illegality; it’s when the conduct creates an intimidating, hostile, or offensive work environment. Offensive conduct can include provocative jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule, insults, offensive objects or pictures, and interference with work performance when based on the individual’s membership in a protected class.
Can anyone discriminate?
An alleged harasser can be the victim's supervisor, a supervisor in another area, a co-worker, a subcontractor, or someone outside the company, such as a delivery person or vendor. Victims may include any individuals affected by the offensive conduct, not just the person targeted by the harasser.
Anti-discrimination laws also prohibit retaliation against those individuals who report discrimination in the workplace, testify, or participate in an internal investigation or proceeding in any way. Retaliation can include but is not limited to reprimanding the employee or giving a performance evaluation that is lower than it should be, transferring the employee to a less desirable position, engaging in verbal or physical abuse, and other actions as identified by the EEOC. The laws also protect those who oppose employment practices that they reasonably believe are discriminatory.
Discrimination suits can be costly
Employment-related lawsuits can be expensive. According to the 2017 Hiscox Guide to Employee Lawsuits, the average cost for an employment-related law suit in 2017 that resulted in defense fees and a settlement payment, was $160,000. These are steep costs that can hurt small businesses, and even threaten their ability to rebound afterward.
Discrimination charges can cost a company more than money. For instance, loss of productivity and decreased employee morale can afflict the workforce, and consequently the bottom line. A firm may even experience a tarnished public image or reputation in the community or even in the industry in the aftermath of a discrimination suit.
Best practices for mitigating workplace discrimination
It behooves employers to take a proactive approach to preventing discrimination in the workplace. This should include commitment and support from the senior executive level for a proactive anti-harassment program, a comprehensive and written policy against harassment in the workplace distributed to all employees, and annual staff training — for managers and employees alike. In some jurisdictions, such training is required.
The EEOC provides extensive guidance about what employers should do to set up an affirmative defense that would include proactive efforts and potentially protect them in a lawsuit, even in a situation where the alleged harassment was determined to be unlawful.
While taking steps to prevent sexual harassment in the workplace is critical, employers may also consider Employment Practices Liability Insurance (EPLI) coverage to mitigate liability in the event of a claim for alleged workplace harassment. EPLI can also provide coverage to mitigate employer costs resulting from claims of other types of discrimination as well as wrongful termination.