Discrimination and Harassment: Is Your Workplace Legally Protected?

Title VII prohibits employment discrimination based on race, color, sex, religion, and national origin, and the Supreme Court has held that sex discrimination includes discrimination based on pregnancy, sexual orientation, and gender identity. An employer that makes an adverse employment decision motivated in whole or in part by a protected characteristic is liable for disparate treatment discrimination, and a plaintiff can establish disparate treatment through direct evidence or through the burden-shifting framework of McDonnell Douglas.

Civil rights and equal opportunity employment and civil rights litigation counsel can advise on the specific protected class and prohibited conduct obligations and develop the workplace discrimination defense strategy.

Quid pro quo harassment occurs when a supervisor conditions employment benefits or threatens adverse action based on an employee's response to unwelcome sexual advances, and an employer is strictly liable for quid pro quo harassment by a supervisor. Hostile work environment harassment occurs when conduct based on a protected characteristic is so severe or pervasive that it alters the conditions of employment, and a plaintiff must establish that the conduct was both subjectively and objectively hostile.

Hostile work environment and workplace verbal abuse counsel can advise on the specific quid pro quo and hostile work environment standards and develop the harassment prevention and employer liability defense strategy.

Title VII's anti-retaliation provision prohibits employers from taking materially adverse actions against employees who file an EEOC charge, oppose discriminatory practices, or participate in an EEOC investigation, and the provision applies even if the underlying discrimination claim is found to be without merit. An employer is vicariously liable for harassment by a supervisor resulting in a tangible employment action, and can establish an affirmative defense to supervisor harassment that did not result in a tangible employment action by showing it exercised reasonable care to prevent and correct harassment.

Workplace retaliation and wrongful termination counsel can advise on the specific retaliation claim and employer liability risks and develop the retaliation defense and wrongful termination risk management strategy.

An employee who believes she has been subjected to discrimination or harassment must file a charge with the EEOC within three hundred days of the discriminatory act, and the EEOC has authority to investigate the charge, attempt to conciliate the dispute, and file suit against the employer. An employer that receives a charge should preserve all relevant documents and identify and interview relevant witnesses.

Federal employment law and labor and employee rights counsel can advise on the specific EEOC complaint, investigation, and enforcement action risks and develop the EEOC response and enforcement defense strategy.

Disparate impact discrimination occurs when a facially neutral employment practice disproportionately excludes members of a protected class and the employer cannot demonstrate that the practice is justified by business necessity. Employers that use artificial intelligence and algorithmic tools in hiring, promotion, or performance evaluation face increasing regulatory scrutiny related to algorithmic bias, and the EEOC's technical guidance has identified specific ways that AI-driven tools can create disparate impact liability.

Age discrimination and labor laws counsel can advise on the specific disparate impact, algorithmic bias, and emerging liability risks and develop the disparate impact defense and AI discrimination compliance strategy.

An employer's obligation to provide a reasonable accommodation is triggered when the employee makes the employer aware of the need for accommodation, and the employer and employee must engage in an interactive process to identify an effective accommodation that does not impose an undue hardship. An employer that demonstrates it exercised reasonable care to prevent and promptly correct discriminatory behavior and that the complaining employee failed to use any preventive or corrective opportunities can assert the Faragher-Ellerth affirmative defense.

Employee misconduct and workplace safety and health counsel can advise on the specific reasonable accommodation and affirmative defense requirements and develop the accommodation process and affirmative defense documentation strategy.

An effective anti-discrimination and anti-harassment compliance program includes a written policy that clearly defines prohibited conduct and consequences for violations, a complaint procedure that guarantees prompt and confidential investigation, and annual training that helps employees and supervisors recognize and report discrimination and harassment. An employer that discovers harassment through its internal complaint procedure must investigate promptly, take corrective action to end the harassment and prevent recurrence, and document the investigation to support an affirmative defense.

Wrongful termination lawsuit and wrongful termination consultation counsel can advise on the specific compliance program, training, and policy implementation requirements and develop the anti-discrimination compliance and training program strategy.