Understanding Workplace Harassment and Discrimination

Harassment and discrimination of any kind have no place in the workplace. However, workplace harassment and discrimination are significant concerns that have been present in many industries and organizations. Despite recent increases in attention to these issues, they continue to persist. As an employer, you are legally obligated to provide a work environment free from intimidation, insult, or ridicule based on race, color, religion, gender, or national origin.

What is Workplace Harassment?

Harassment is defined as verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of that person’s race, skin, color, religion, gender, national origin, age, or disability. It further serves the purpose or effect of unreasonably interfering with the individual’s work performance.

Conduct itself can take many forms, such as epithets, slurs, stereotyping, jokes, and pranks that are hostile or demeaning or written or graphic material that denigrates or shows hostility towards a particular individual or group.

What if it was just a joke?

Employees who engage in harassing conduct often will use the defense that “it was just a joke.” In situations where you are trying to determine if some conduct that has taken place is harassing conduct, the way to decide it is to use the “reasonable person” standard. In layperson’s terms, it refers to a hypothetically reasonable person with a reasonable way of interpreting and reacting to a situation of harassment. The reasonable person standard aims to avoid the potential for parties to claim they suffered harassment when most people would not find such instances offensive if they themselves were the subject of such acts. This standard includes considerations of the perspective of persons of the same race, color, religion, gender, national origin, age, or disability as the harassment victim.

Prevention and Risk Mitigation

If your company has not taken the steps to mitigate the potential for workplace harassment, this becomes an immediate priority. From a legal standpoint, the best way to reduce your liability should harassment ever occur is to have policies and procedures in place that show that you did everything you could to prevent harassment from occurring. Here are some steps that your team can use for preventing and dealing with harassment:

1. Establish a zero-tolerance, anti-harassment policy

Have a written policy stating that harassment will not be tolerated. This policy should include a clear-cut, easy-to-understand definition of harassment, a harassment prohibition statement, a

description of your complaint procedure, a description of disciplinary measures, and a statement of protection against retaliation.

2. Take immediate action

Should an incident happen, make sure that leadership immediately takes corrective action. This will help build trust and let potential harassers know that that behavior will not be tolerated.

3. Make it easy to bring harassment and discrimination to light

Set up a complaint process that is both easy to use and doesn’t embarrass or burden the victim. Often, employees will remain silent for fear of retaliation or further harassment. By establishing an easy, anonymous process, employees are more likely to come forward and seek help from their employer.

Take every complaint seriously and investigate every complaint.

4. Institute training and awareness programs for your employees

Establish a training program in which all employees must participate and schedule it regularly. This training should include what constitutes acceptable and unacceptable behavior, how to recognize when harassing conduct is taking place, and steps to take to report inappropriate behavior. This also includes management. Management must be skilled in recognizing when harassment occurs and making clear such behavior cannot be tolerated under any circumstance.

Nebraska Legislature: Updates For Employers

Earlier this year, three bills were introduced to the Nebraska Legislature, which may have lasting effects on employers.

Bill 961- Non-Compete Clauses

First, Legislative Bill 961 was introduced, which would prohibit non-compete clauses for lower-wage employees. This follows the U.S. Federal Trade Commission’s 2023 proposal to ban all non-compete clauses in employment contracts. Unlike the US FTC’s proposal, LB 961 would only prohibit non-compete clauses for “lower wage -employees,” meaning employees who earn no more than one hundred thousand dollars annually.

A non-compete clause is a contractual term between an employer and an employee that forbids an employee from working for a competing employer or starting a rival company/business. Typically, this applies within a particular geographic area and for a specific period of time after the worker’s employment ends. Firms use non-compete clauses to protect their interests, including confidential information such as trade secrets and customer identities. However, many find the non-compete clauses to be an unfair method of competition.

Now, what does this mean for employers? If this bill were to pass, there could be several effects on employers who use non-compete clauses. First, employers will need to investigate the measures in place to protect sensitive data and information. Without a non-compete clause, employers will likely need to limit access to company information and bolster employees' confidentiality agreements. Employers may also expect a need to increase salaries to keep employees from “shopping around.” However, there may be positive effects for employers. If non-compete agreements become prohibited, employers have more access to top talent for hiring. Employers can look to employees at competing businesses rather than be limited to a less experienced pool of employees.

Although it is still being determined whether the bill is to pass, it would be advantageous for employers to examine their current structures and plan their response to non-compete agreements becoming unenforceable.

Bill 977- Discrimination of Military and Veteran Status

Next, Legislative Bill 977 was introduced to prohibit discrimination based on military and veteran status. As you may be aware, military veterans are a sizable social group, given that there are approximately 17.9 million veterans in the U.S. (Bureau of Labor Statistics, 2023), with many looking to join the workforce. Unfortunately, veterans often struggle to transition into the civilian workforce and find employment. Veterans are stereotyped and perceived as “damaged” from their wartime experiences.

Currently, Federal protections are in place, as the U.S. Equal Employment Opportunity Commission (EEOC) created the Uniformed Services Employment and Reemployment Rights Act (USERRA), which applies to veteran employees and those employing them.

Under USERRA, it is unlawful for employers to discriminate against service members based on their military service and expressly forbids retaliatory and related adverse discriminatory actions based on military status. Similarly, LB 977 looks to provide the state with the power to regulate, suppress, and prevent discrimination on the basis of military or veteran status.

Under the proposed bill, counties would be able to create local agencies to handle discrimination claims similar to the EEOC. These agencies would ultimately be able to order appropriate penalties and provide equitable relief for veterans found to be subject to discrimination.

Bill LB1213 - Annual Paid Leave

Lastly, LB1213 has been proposed and would require employers to provide annual paid leave for school-related activities. Specifically, employers with at least 15 employees would be required to provide a minimum of 20 hours of paid annual leave for employees to participate in activities such as parent-teacher conferences, volunteer and extra-curricular activities and athletic competitions. However, the bill excludes U.S. government employees, Indian tribes, or tax-exempt private membership clubs. LB1213 was proposed in hopes of increased parental involvement to promote better behaviors and increased student achievement.

Risk Management for Performance Evaluations

As the end of the year approaches, many companies are preparing for their annual performance evaluations. Many employers find these evaluations as an opportunity to provide adequate feedback to each person on his or her own performance and to serve as a basis for modifying or changing behavior toward more effective working habits. While these evaluations may seem like a positive tool to increase an employee’s performance, employers must understand that legal risks can arise as a result of the evaluations, such as claims of discrimination.

To reduce the legal risks of performance evaluations, employers should implement the following best practices:

1. Selecting the reviewer: The evaluator should not have a personal or family relationship with the employees being reviewed and should evaluate only those workers in their direct line of supervision.

2. Frequency: all employees in the same job classification should be evaluated on the same time cycle.

3. Objective criteria: Employees should be evaluated on objective/measurable factors.

4. Wording: employers should be cautious about the wording used in evaluations. Always maintain a professional tone and constructively highlight both the positive and negative.

5. Self-assessments: employees should assess themselves as a part of their review process. If both the evaluator and the employee agree on improvement areas, it is easier to set performance goals.

6. Transparency: Employers should have a written document explaining the procedures for performance reviews. The document should describe the criteria used, how often reviews are done, and who will conduct the evaluations.

7. Audits: Employers should conduct audits on the results to determine whether the evaluation system is fair.