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Handling Harassment at Work in Trump Nation

Nitin Sud, Board Certified Labor and Employment Attorney

Nitin Sud, Board Certified Labor and Employment Attorney

During the presidential campaign last year, Donald Trump made several statements arguably supporting ridicule or mistreatment of people based on their race, national origin, gender, or disabilities, as well as acknowledging disturbing incidents of sexual harassment. Following his election victory, and now confirmation as president, concerns of yielding to inappropriate harassment in the workplace have understandably arisen. (If it’s ok for the President to do it or say it, then it must be ok for everyone else, right?) However, the law has not yet changed, and unlawful harassment in the workplace should be handled appropriately.
Question: What types of harassment are illegal?
There is not yet any federal or state anti-bullying law, nor any requirement that management and co-workers have to be nice to each other. For example, “harassing” a co-worker based on his or her poor choice of shoes could not be considered illegal, although it may still be grounds for termination. Unlawful harassment only prevents improper treatment based on protected traits as defined by statute such as race, national origin, color, disability, sex, age (over 40), and religion. Although sexual harassment is generally the most understood form of harassment in the workplace, the law equally protects harassment involving the other protected traits.
Question: What constitutes “unlawful” harassment?
Harassment arises to the level of unlawful when the treatment is sufficiently “severe or pervasive” to alter the conditions of the victim’s employment and create an abusive working environment. Judges focus on the “totality of the circumstances,” including frequency of the conduct, its severity, and the degree to which such treatment interfered with an employee’s work performance. Not surprisingly, whether an allegation of harassment meets this standard is often one of the biggest battles in court.
Question: How should employers handle complaints of harassment or prevent it from occurring?
It is important for all employers to have proper written procedures in place for obtaining complaints of harassment and conducting appropriate investigations. If a complaint is substantiated, it will be necessary to take suitable corrective action. Also, the employer should ensure that the employee who complained is not retaliated against, regardless as to the outcome of the investigation.
However, the best way to deal with harassment is to prevent it from occurring. Employers should clearly communicate to employees that unwelcome harassing conduct will not be tolerated. They can do this by establishing and following an effective anti-harassment and complaint policy, as well as providing anti-harassment training to their managers and employees. Employers should create an environment in which employees are not afraid to raise concerns and are confident that those concerns will be addressed.
In conclusion, although the advancement of employees’ rights may be on-hold over the next four years, current laws still provide remedies that should not be overlooked.

Board Certified Labor and Employment Attorney Nitin Sud represents employees, executives, and small businesses in the following matters: Litigation in state and federal courts, Wrongful termination and employment discrimination claims, Overtime claims, Employment contracts, Severance agreements, Non-compete and non-solicitation matters. For more information, visit www.sudemploymentlaw.com


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