How to Discipline Employees without Being Sued for Harassment

November 5, 2012

Employees are often under the false impression that all forms of “harassment” or generalized bad treatment at work are prohibited by law–that is not the case. Harassment is unlawful only if based on one of the characteristics protected by federal or state anti-discrimination laws.

From a federal law perspective, these include claims of harassment based upon race, religion, or other protected characteristics such as disability or age. In fact, from a legal perspective, an allegation of harassment is nearly synonymous to allegations of discrimination of a protected class.

Laws in some states, like California, are very strict on employers, but they do not prohibit employee reprimands and discipline; however, due to legal climate, employers have been more reluctant to do at the fear of being sued. No matter what employers seem to do, you’ll have allegations of this nature. Sometimes it may be true, but as a law firm who represents businesses and their employer practices, I often see illegitimate claims.

How to Discipline or Reprimand an Employee?

The best thing an employer can do is dish out discipline objectively. You do not want anyone to think they were getting special positive or negative treatment for any other reason than work performance or other lawful policies.  When disciplining, the employer should state clearly the reason for the discipline and be objective, consistent, and firm on its management practices.

Employers tend to think these employees who file these false claims are being vicious, but in reality, these incidents can be tied to poor management and therefore prevented. To illustrate further, if an employer legitimately disciplines an employee, sometimes that employee may be in denial that he or she did anything wrong; it takes courage to admit your own mistakes. In the state of denial, the employee will come up with each and every reason as to why they were singled out, including  that it was because they are a particular gender, race, etc. They will then start putting other pieces together as the human mind will conjure up even the most smallest of  signs–a poorly judged joke or a mere slip of the tongue.

Yelling at Employees

Yelling in itself is not per se harassment,  but if the yelling is coupled with violent behavior, it could be considered severe or pervasive. This is a question to the jury and therefore it may be argued depending on the details of the yelling whether it would be crossing the line. Maybe the supervisor also banged his fits on his desk and threw a stapler across the room while yelling. If those actions are connected to discrimination of a protected class, than a jury may determine in  that case that the employee was illegally harassed.

Sexual Harassment

The most common allegation of harassment by far is sexual harassment. There are two types, (1) quid pro quo where an employee’s subjection to sexual conduct is linked to the grant or denial of job benefits; and (2) hostile work environment where the sexual conduct is unreasonably interfering with an individual’s work performance or creating an offensive environment. In either case, beyond other elements of proof, the most important element to be proven is that the acts were unwelcome. The criteria that is applied to sexual harassment is whether the person being harassed subjectively considered the actions unwelcome. That means it is irrelevant whether a reasonable person would find the acts unwelcome, but whether the actual person as a matter of fact considered the acts unwelcome.

Other Types of Harassment

In another example, racial or religious based harassment requires severe or pervasive conduct. Like other forms of harassment and torts, the standard of “crossing the line” is where a reasonable employee in similar conditions would determine that the acts were severe or pervasive and in the case of racial or religious based harassment, these severe or pervasive acts were clearly based on the employee’s race or religion.

Top Floor Legal provides comprehensive legal protection for businesses by acting as its general counsel for a fixed monthly fee. At Top Floor Legal, we pride ourselves on digging deep into the business of our clients so we can proactively address their needs. TFL focuses on striking the right balance between conservative advice and practical solutions. This approach and our client-oriented values have allowed us to provide exceptional service to our clients at rates that fit their budget.

Nasir Pasha

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Nasir N. Pasha is the managing attorney of Pasha Law, providing essential legal services and support to businesses and corporations in California, Illinois, New York, and Texas. He oversees all of the firm’s operations and is a pivotal force in maintaining client relationships and ensuring that each transaction is brought to its best possible conclusion.

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Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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