#IEBA2018 Recap: Terms & Conditions Power Panel Part 3 – Harassment and Discrimination in the Workplace


Jason Bernstein, AEG Presents

Berkeley Reinhold, Business & Law Office of Berkeley Reinhold

Tim Epstein, Duggan Bertsch, LLC

Brent Daughrity, Anderson Benson Insurance


Moderated by Pam Matthews, IEBA


Matthews shifted the discussion to harassment and discrimination in the workplace. On the legislative side, there are a number of federal statutes that address discrimination: Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, and Age Discrimination in Employment Act. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Most employers with at least 15 employees are covered by EEOC laws. Most labor unions and employment agencies are also covered. The laws apply to all types of work situations including hiring, firing, promotions, harassment, training, wages, and benefits.


The EEOC has the authority to investigate charges of discrimination against employers who are covered by the laws, and advocates and provides resources for those who believe they have been victimized by an employer. “You can recover money from your employer, if it is determined that they behaved illegally,” Matthews said. “States also have general commissions that handle these claims. For example, Tennessee has the Human Rights Commission.”


Matthews read the EEOC’s definition of sexual harassment: “It is unlawful to harass a person, an applicant, or an employee because of that person’s sex. Harassment can include ‘sexual harassment’ or unwelcomed sexual advances, request for sexual favors, or other verbal or physical harassment of a sexual nature.


“Harassment doesn’t have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.


“Both victim and harasser can be either male or female and the victim and the harasser can be the same sex. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent and so severe that is causes a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer such as a client or customer.”


Persons who are victims of sexual harassment can sue under Title VII of the Civil Rights Act of 1964. In general, claims must be filed within 180 calendar days from the day that the discrimination took place. The Department of Labor publishes numerous facts sheets available at dol.gov.


Criminal harassment is a pattern of behavior or course of conduct that includes stalking and threatening conduct. Harassment is unwanted, unwelcomed, and uninvited behavior that demeans, threatens or offends the victim and results in a hostile environment for the victim.


Delaware and New York passed new laws this year providing sexual harassment protections in the workplace. Many states have more stringent rules than the federal statutes. For example, aggravated harassment in the first degree can be a class E felony in some states. “At the same time,” Matthews said, “Many states have more laws to protect employers than employees. It’s important to note that the burden of proof is always on the employee.”


“We all know that you aren’t supposed to grab people and touch them in certain ways,” Daughrity said. “We know that you aren’t supposed to trade sexual favors for promotions. Those are the blatant things. In terms of culture, you used to go to the auto mechanic and they’d have these calendars with sexy hot models with the tools. Or people would have calendars on their desk that are just offensive. Or you would hear people at lunch break using words that aren’t appropriate in a business situation. People should have their freedom but maybe you should keep it at home. It doesn’t all need to be in the office.”


“Sexual harassment and nondiscrimination training is no longer just for supervisors,” said Bernstein. “It is for everyone. Believe it or not, sometimes people witness something happening and don’t say anything. It is the same with a security issue – you should speak up and alert someone. There are discreet ways that you can alert someone to the fact that you witnessed something that is potentially harassment and you want to call it out before it grows into a definitive problem.”


“I worked at a very large company and the HR person’s office was right next to the office of one of the heads of the company,” Reinhold added. “That doesn’t really encourage people to come forward to talk to HR – the head of the company can see them walking in and out.”


“Obviously, sexual harassment training is important,” Reinhold continued. “But I think the most important thing is to have a company culture that supports people being able to talk about these things. These sexual harassment seminars, at least in my experience, are so boring. You sit there for 3 hours and everybody’s eyes are rolling. When it actually comes to a situation where somebody knows about something, they are only going to talk about it or report it if they feel comfortable doing that. I think that the culture at the company is as important as the training itself.”