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 as less manly than his coworkers.  Among other obnoxious things, the construction worker’s supervisor called him “princess” and made obscene adolescent gestures targeting him.  The lawyer representing the Equal Employment Opportunity Commission said that “the harasser openly confessed repeatedly at trial that he considered [the plaintiff] less than manly, and that he harassed him because of it.”  The EEOC does not, as a general rule, have any jurisdiction in Indian Country, however Indian Country has every incentive to eradicate obnoxious and immoral behavior from the workplace.  Experts anticipate an increase in these kinds of claims which some employers characterize and improperly excuse as horseplay.

These gender stereotyping cases should not come as a surprise to human resources personnel since HR is aware that harassment comes in many forms.  However, some employees do not possess the insight that these cases can generate liability for employers.  Part of the reason some employees lack insight can be blamed on the employer’s failure to promulgate harassment policies which address the wide range of harassment claims and employers failure to provide real world training.  Let’s address the policy and training issues one at a time.

Sometimes employer policies provide a legalistic definition of sexual harassment followed by a handful of typical scenarios along with a directive to report the conduct to human resources.  If that summarizes your policy, there is a giant opportunity to improve.  Harassment policies frequently focus on creepy behavior in the workplace like dirty jokes, inappropriate touching and  declaring certain jobs off limits for women.  Our policies should certainly address all of the creepy versions of harassment while at the same time prohibiting workplace conduct which alienates certain employees because they do not fit in.

Moreover, some employers give little harassment training and for those who provide the training, it is focused on reviewing the policy and discussing process.  Again there is a giant opportunity to improve.  Training certainly should include a conversation about the employer’s reporting process, but that is not enough.  Good training provides practical examples of the wide range of behavior which fits under the harassment umbrella and what is necessary to remove the behavior from the workplace.

Sometimes employers attempt to excuse workplace harassment by asserting that the employer has a culture of male dominance therefore a certain level of harassment must be tolerated.  Or some employers will apply the rules to most departments, but give a pass to certain departments arguing that “boys will be boys.”  The failure to uniformly enforce the rules is a breach of the promise made to employees when you declared that there is no tolerance for harassment in the workplace.

A meaningful approach to harassment in the workplace has at least three components: (1) a strong and comprehensive policy forbidding harassment; (2) practical training which provides real insight for employees and (3) an environment which enforces the policy regardless of the popularity of the perpetrator.  As to the last point, one of the reasons the Court found the construction company liable in the above scenario is it failed to investigate the allegations when the plaintiff raised complaints.  A failure to carry out a prompt and thorough investigation of harassment allegations is another way of saying that you are not serious about enforcing your policy.  That reaction to harassment allegations will make things more difficult in connection with defending a claim.

Recommendations:  Review your harassment policies to ensure they capture the broad range of harassment.

Review your training to ensure that it is not merely a check-the-box item on your task list but instead meaningful training which addresses real life situations.

Make sure that you are serious about enforcing the policies consistently.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.