STRAIGHT TALK:
EMPLOYMENT DISCRIMINATION AND SEXUAL HARASSMENT
© 2003 By Douglas E. LoMonte
This article is specifically directed to the owners, managers and employees of Connecticut businesses.
Unlawful Discrimination. As most of you know, federal law makes it illegal for employers to discriminate in the hiring and firing processes on the basis of race, gender, religion, age and physical disability. Those are known as "protected classifications". Under Connecticut law, there are several additional protected classifications, including marital status, national origin, sexual orientation and mental disability.
Hint to Employers: Protected classifications come into play during recruitment and hiring as well as during layoffs and firing. So bear in mind the less well-known Connecticut protected classifications when recruiting, interviewing and hiring.
Two Sides. As a manager or owner, you may, from time to time, face difficult decisions regarding employees who happen to be members of a protected classification. If you’re an employee who happens to be a member of a protected classification, you may feel that your employer has acted wrongfully against you. Regardless of which side you are on, I believe that it is critical to keep in mind that there are always two sides to the story.
Our law firm has extensive experience on both the management and employee sides. For management, we’ve handled complaints by employees to the Connecticut Commission on Human Rights and Opportunities (CCHRO), the federal Equal Employment Opportunities Commission (EEOC) and state and federal courts. On the employee side, we’ve counseled employees on their rights when faced with unlawful discrimination and harassment.
Pretext. "Pretext" is a word that seems to come up in almost every employment discrimination case. In a nutshell, "pretext" means fabricating a legitimate reason as a cover for an illegal reason. In twenty first century Connecticut, it’s rare for an employer to base a hiring or firing decision explicitly or overtly on the most obvious of the protected classifications (i. e., race, gender and age). As an example, employers don’t often come right out and say that they are terminating someone’s employment because that person is African American, female or over a certain age. Rather, in my experience, firing decisions are most often the result of workforce downsizing or based upon poor performance, insubordination, attitude or inability to work cooperatively with others -- in other words, for legitimate, nondiscriminatory reasons.
Documentation. If you’re an employer, keep in mind that, even when a firing decision is made for legitimate reasons, you can get into trouble if you fail to document the true reasons for your decision. If a complaint is made, your case will be heard by an impartial observer (i. e., an administrative fact-finder, judge or jury). Without adequate documentation, statements that you make "after the fact" may appear to that impartial observer be "a mere pretext".
Hint to Employers: Make sure that you maintain a personnel file for each employee. The personnel file should contain copies of all written warnings and notations regarding oral warnings and incidents of misconduct. If you give periodic performance reviews, make sure that they’re reasonably detailed and accurate, not inflated.
Hint to Employees: If you feel that you’ve been the victim of unlawful discrimination, keep notes of each incident and retain any documents that may support your position. Make a list of persons who may be willing to corroborate your story.
Sexual Harassment. Sexual harassment is illegal. If you’re an employee and you feel that you’re being unlawfully harassed, it’s important that you keep accurate and detailed notes of incidents as they occur. Many employers have written policies concerning sexual harassment in the workplace. If you feel that your working environment is hostile or offensive and your employer is unwilling to take measures to correct the situation, you may have a legal claim.
The Ebenezer Scrooge Factor. Employees should keep in mind, however, that there is no law that will protect them from a supervisor who is merely unpleasant or even tyrannical. Does your supervisor never say please or thank you? Make you do "busy work" on Christmas Eve? Never compliment your work? Throw things across the office every time you miss an assignment? If your answer to any of these questions is "yes", then he or she is most definitely a jerk. Unfortunately, his or her behavior does not rise to the level of an actionable complaint. Sorry, Mr. Cratchit, but in order to have a valid claim for sexual harassment, you must be able to demonstrate that behavior of a sexual nature created a hostile or offensive working environment.
Prevention Training. Employers with fifty or more employees are required by Connecticut law to provide sexual harassment training to all of their supervisory personnel within six months of assumption of a supervisory position. Who is a supervisor? I recommend that you take a conservative approach and assume that anyone to whom at least one person reports is a supervisor.
I am registered by the Permanent Commission on the Status of Women as a sexual harassment prevention training consultant and have conducted employee and supervisor training sessions for numerous small and large groups since 1993. For a more comprehensive approach, sexual harassment prevention training may be combined with diversity training, designed to improve communications and understanding among supervisors and staff. If you’re a business owner or manager with a problematic working environment, please feel free to give me a call. Similarly, if you’re an employee and are unsure whether certain behavior rises to the level of sexual harassment, I’m available to listen and give you my advice.
If you have any questions or comments about this article, please share them with me. You may reach me at dlomonte@wsdb.com .
