Caution:  The following identifies some basic but highly technical  issues. It seeks to summarize a very broad subject in about 500 words. There are many exceptions  and nuances to these rules, so if you think you have an issue, consult your attorney.

No one reading this article is prejudiced or wants to discriminate in any way against their most important asset:  their employees.  But the issue is much more subtle and therefore dangerous for employers who are not vigilant.

Claims for illegal discrimination in the workplace have 3 basic sources:

(1) Hiring and other employment related decisions (compensation, job classification, promotion, etc.) based on the “protected” category of the candidate.  Think about it, everyone belongs to one or more of the protected categories because everyone has some of: national origin; race; color; sex and sexual orientation (yes, female bosses sometimes discriminate against males); age (over 40); religion (or lack thereof); mental or physical disability, including everything from depression to pregnancy; or immigration status (unbelievably, you can illegally discriminate against an undocumented alien whom it is technically illegal to hire!).  The practical effect of all this is that every employment related decision must be scrutinized by the employer to make sure that it is justified in good faith by ability, performance, “bona fide job qualifications” and the like – and that you can prove it.

(2)  Harassment in the job place, primarily (but not necessarily) sexual, is of 2 basic types: (a) ‘quid pro quo’ (e.g., “sleep with me or suffer an adverse employment consequence”); and (b) ‘atmospheric’ – the establishment of a hostile work environment.

Sexual harassment can arise from any unwanted touching or conduct, including: verbal communication (e.g., telling dirty jokes, asking for a date, anatomical comments, ‘double’ meanings (where one is sexual); or from non-verbal communication (touching oneself, suggestive eye contact, or posting or displaying sexually suggestive materials).

(3) Retaliation for an employee’s complaint, whether formal or informal, gives rise to a separate offense, even if the underlying complaint is unjustified.  Basically, whenever an employee asserts his or her rights, whether based on discrimination or by seeking a leave to which the employee is entitled, the employer must be certain not to take any adverse action against the employee because of that action – and the employer should be prepared to prove any defense.

The consequences to the employer of a successful claim can be very severe (damages, punitive damages, back pay, attorney fees (for both sides), not to mention the disruption of business that can take place).  So, how can an employer protect itself ?  By making sure that every employment related decision is justifiable in terms of job performance, by educating the work staff, especially supervisors, on a regular basis about discrimination issues, and, most important, by taking the issues described above seriously enough to be well informed and pro-active in every aspect of employer-employee relations.

(Jay Strauss is a practicing attorney, a former Chamber President and Mayor of Lafayette (2000).  Questions and comments are welcome by email:  jstrauss31@yahoo.com.)

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