What is illegal is to harass you based upon any class status protected by law. What this ought to mean is that employment decisions are based on merit and service needs, and not on race, color, citizenship status, national origin, ancestry, sex, age, religion, creed, physical or mental disability, physical handicap, or veteran status.
The Genetic Information Nondiscrimination Act of 2008 (GINA), took effect on November 21, 2009. Based upon GINA, you should additionally make no employment decisions based upon genetic information of anyone or anyone’s family member. Not yet at the federal level, some states include medical condition, sexual orientation, sexual expression, and marital status as additional categories protected by law.
If an individual feels harassed for one or more of the class statuses above, they may file a complaint with the U.S. Equal Employment Opportunity Commission. They have 180 days to do so from the date of the incident. If you are in a deferral state, meaning there is a state agency set-up to address issues of employment discrimination, then that 180 days expands to 300. You may hope your employees first come to you the employer to give you the opportunity to investigate and address the situation. There is no EEOC requirement that an employee do that. So, how do encourage employees to give you that chance to deal with these problems in-house?
How to Prevent EEOC Complaints
Education and training are the keys. Educate in your employee handbook with your clear policy against harassment. Review and make sure your policy against harassment is incorporated into your orientation and on-boarding process. Put your supervisors through the appropriate harassment prevention training. Make sure that leaders walk-the-talk. In my state of California, I conduct two-hour mandatory training sessions for supervisors because it is required every two years by state law AB1825.
To educate yourself before you train others, I recommend the book “Investigating Workplace Harassment How to Be Fair, Thorough, and Legal” by Amy Oppenheimer, J.D. and Craig Pratt, SPHR, MSW. This is an excellent resource not only on how to conduct an investigation, but also a useful guide in making the decision whether you want to do investigations in-house or hire a third party to do so.
In chapter eight, "Weighing the Evidence and Making a Decision," Oppenheimer and Pratt do a great job of making it clear you do not follow the phrase on the television crime shows for “proof beyond a reasonable doubt.” They explain the rational for the plaintiff proving his or her case by a “preponderance of the evidence,” which could be 51 percent. This book is published by the Society for Human Resource Management (SHRM) and is available at www.shrmstore.shrm.org.
Beverly N. Dance, MBA, SPHR-CA, CCP, CEBS
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