Bias, Harassment, Leaves, and Accommodations
HR is always on top of the latest regulatory developments regarding recruitment, hiring, discipline, firing
and other workplace matters. But if supervisors and front-line managers aren’t trained on how to avoid
compliance risks, even the most knowledgeable HR staff can’t save the day.
To reduce the risk of legal liability, organizations need to make sure their supervisors and managers follow
policies designed to prevent claims alleging discrimination, harassment and retaliation.
Preventing discrimination and harassment in the workplace
Many states have required sexual harassment prevention training for supervisors for some time. And
recently, more states and local governments have enacted legislation requiring such training for all
employees.
Many states have required sexual harassment prevention training for supervisors for some time. And
recently, more states and local governments have enacted legislation requiring such training for all
employees.
Supervisors must be educated on the many protected traits and the specific laws designed to prevent
harassment and discrimination based on those traits. The laws include:
- Title VII of the Civil Rights Act (Title VII), which bars discrimination on the basis of race, color, religion, national origin and sex, including pregnancy, sexual orientation and gender identity
- The Americans with Disabilities Act (ADA), which protects qualified disabled individuals and those associated with disabled individuals against discrimination
- The Age Discrimination in Employment Act (ADEA), which establishes employees 40 and over as a protected class
At a minimum, supervisors and managers need training on which traits and characteristics are protected
and the types of adverse employment actions that could be viewed as discriminatory against such
individuals.
They also should be provided with examples of the types of comments and conduct that could be
construed as demeaning, threatening, bullying or otherwise inappropriate and rising to a level that creates
a hostile work environment. Whether that conduct is perpetrated by the supervisor or a coworker,
customer or client, the supervisor is responsible for remedying it.
Training supervisors on how to foster a culture of respect is important, too. They should understand the
importance of addressing bad behavior directed at an employee as such instances arise. In the eyes of the
law, seemingly sporadic comments or conduct can, over time, combine to support claims of a hostile work
environment.
Supervisors and managers also need to be mindful of how retaliation claims arise. First, they need to
understand that an employee doesn’t have to prove the merits of an underlying claim — such as a
schedule reduction that results in loss of wages or employee benefits — to prove retaliation has occurred.
Thus, it’s important to educate supervisors and managers on adverse employment actions such as
schedule reductions, demotions and firings, and how an employee can generally establish a causal link
between complaining about the misconduct and the adverse action.
As a best practice, dedicate a section in your employee handbook to what supervisors and managers need
to know to meet obligations under the organization’s antidiscrimination and antiharassment policy.
Include:
- Definitions to flesh out the meaning of “harassment”
- Real-life examples illustrating instances of discrimination, harassment and retaliation in the workplace
- Actions to take if someone reports unlawful conduct in the workplace or is a witness to it
The training should also give supervisors and managers tips for how to steer conversations during job
interviews, performance meetings and other interactions with staff so the discussion doesn’t go down a
road where employees or job applicants are revealing too much about protected traits. Redirecting the
conversation to a job-related topic helps eliminate the risk of a discrimination claim.
Managing requests for leave and accommodation
If an employer is covered under the Family and Medical Leave Act, a state companion family and medical
leave statute, or a state or local paid leave law, supervisors need to know how to respond to requests for
leave. And they should be educated on what to do if it isn’t clear whether a leave request may be protected
under one or more federal, state or local laws.
They should also be instructed on what’s acceptable to ask an employee if the employee presents a
medical certification or recertification that is incomplete, uclear or otherwise ambiguous.
It’s equally important for supervisors to understand what to do if an employee is struggling to perform
their essential job functions or requests an accommodation if the ADA or a state disability law may apply.
There aren’t any “magic” words or phrases an employee must use to put the employer on notice that they
may need an accommodation. Therefore, it’s important to train supervisors and managers to pay close
attention to what is going on around them. They should be trained not to gloss over situations where an
applicant or employee has difficulty comprehending or answering questions or physically performing a
requested task, which may be a sign that they need some sort of accommodation. Also, habitual tardiness
or absences could be a sign that an employee may need leave as an accommodation.
For these reasons, it’s important to train supervisors and managers to be on the lookout for instances
where a duty to engage in the interactive process has been triggered.
Supervisors and managers should also be apprised on the types of actions and inactions that could leave
an organization vulnerable to a failure-to-accommodate claim under Title VII. For instance, they should
learn:
- How to respond when someone says they need a religious accommodation
- The types of religious accommodations an employee may ask for, such as an exception to a dress code policy, a schedule change or specific days off, etc.
- What generally constitutes an undue hardship for an employer when such an accommodation request is made
The bottom line: Give supervisors and managers practical pointers using real-life examples to illustrate
their role in dealing with leave and accommodation requests. And be sure to impress upon them that they
should involve HR in the decision-making process, so that you can be sure a situation is being handled
properly.
Explore your benefit options
For more ideas on fitness benefits, talk with your insurance broker or benefits adviser. In addition to examining fitness benefit options, they can help you communicate offerings to employees to increase appreciation and utilization.
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