Harassment & Discrimination

Striving to Understand Sexual Harassment

In harassment, discrimination and bullying training, after recognizing I have significant room for improvement, I ask managers to place themselves in the alleged victim’s shoes in treating him or her with dignity and the seriousness with which the circumstances deserve.  To reinforce this respectful request, I include the following powerful quote from a 1991 discrimination case: "Because women are disproportionately the victims of rape and sexual assault, women may have a stronger incentive to be [...]

Think a Second Time About Discrimination in the Workplace

All responsible tribal employers take unlawful discrimination seriously by defining those characteristics which will not be utilized in making workplace decisions.  Those things are almost always defined as race, religion, national origin, gender, age, disability, sexual orientation, pregnancy, marital status, political affiliation, veteran status, military leave and other categories.  Once defined, responsible employers enforce the policies necessary to send a clear message that discrimination will not be tolerated.  The question is whether this is [...]

Will there be an increase in gender based discrimination claims?

Is harassment based on a failure to conform to gender stereotypes a potential legal claim? In the December 2013 edition of Corporate Counsel there is an excellent summary of a federal court case which evaluated whether someone can pursue a harassment claim when employees get singled out when they do not fit in.  In this gender stereotyping case, the construction worker who sued did not fit in at the workplace because he was perceived [...]

Addressing retaliation in the workplace

Earlier this year the United States Supreme Court ruled that when an employee filed sex discrimination charges against her employer, the employer could not retaliate against her by firing her fiance.  The precedent will certainly deter employers from terminating or harassing family members as a means of retaliating against an employee for challenging the employer or a specific supervisor. In a related analysis, Equal Employment Opportunity Commission statistics reveal that retaliation claims have increased [...]

What is, and is not, a hostile work environment?

Hostile work environment is frequently misunderstood by employees. Employees working for tribal employers are just as confused as employees working for non-Native organizations.  Sometimes an employee's confusion regarding what is, and what is not, a hostile work environment, influences the way employers address the behavior in the workplace.  Employers which improperly label hostile workplace behavior as a subset of sexual harassment likely will increase the perception of risk within the tribal organization. Those misperceptions [...]

Sexual Harassment Best Practices

The spotlight on sexual harassment has generated an abundance of employer introspection.  For tribal employers, what should that introspection include? Since the late 1980s when the United States Supreme Court engaged the sexual harassment conversation through several important cases, the conventional wisdom for employers included three recommendations:  (1) prohibit sexual harassment in a clear policy; (2) train employees on the policy; (3) enforce the policy.  That three-part recommendation may have helped employers sell their [...]

Are grumpy employees creating a hostile work environment which is actionable under the law?

Grumpy workers (even hostile workers) do not necessarily create the circumstances for an employment related court action. On the one hand, if the grumpy worker is grumpy with everyone, the employer should certainly manage the grumpy employee toward respectful workplace behavior, but there is little risk of a lawsuit.  On the other hand, if an employee is selective in their grumpy behavior and targets a particular gender ("Women should be at home not in [...]

Why is specificity necessary for tribes to define equal opportunity in employment?

Unless modified through a compact, agreement or waiver, federal anti-discrimination law does not apply to on-reservation tribal employment practices.  Additionally, in most circumstances state human rights laws do not apply to tribal employers.  Since both the federal and state sovereigns have not or cannot define equal opportunity in employment for tribes, it is important for tribes to define equal opportunity in employment in a manner which reflects the tribe's unique traditions, customs, values and [...]

Should tribal employers use arrest and conviction records in hiring and retention decisions?

Yes. Due diligence in hiring and retaining good employees is consistent with sound managerial and legal practices.  Criminal background checks, reference checks, interviews and scrutiny of employment applications comprise some of the due diligence performed by prudent employers.  Once the employer performs the due diligence and gathers the facts, are there limits on the use of those facts in making employment related decisions? Of course there are limits on the use of the facts [...]