Chapter 33

Undue Harship

Employers are not obliged to provide accommodations that would impose an undue hardship - that is, actions that would require significant difficulty or expense. The EEOC and the courts consider factors such as the nature and cost of the accommodation, the overall financial resources of the employer, and the employer's type of operation. What may be significantly difficult or expensive for a small employer may not cause an undue hardship for a large employer.

Reasonable Accommodation for Disability

Under Title I of the ADA, an employer's duty to reasonably accommodate an individual's disability if doing so does not cause an undue hardship on the employer. If an employer does not make a reasonable accommodation that could be made without causing an undue hardship on the employer, the employer has violated the ADA.

Reasonable Accommodation for Religion

Under Title VII, an employer's duty to reasonable accommodate the religious observances, practices, or beliefs of its employees if doing so does not cause an undue hardship on the employer.

The Old Workers Benefit Protection Act (OWBPA)

Amended the ADEA to prohibit age discrimination with regard to employee benefits.

Pregnancy Discrimination Act

A 1978 federal act that was an amendment to Title VII which forbids employment discrimination against a female job applicant or employee because of pregnancy, childbirth, or related medical conditions. It is unlawful to harass a woman because of her pregnancy, childbirth, or a medical condition related to pregnancy or childbirth and the harassment is so severe that it creates a hostile work environment.

Color Discrimination

Employment discrimination against a person because of his or her color; for example, a light-skinned person of a race discriminates against a dark-skinned person of the same race. Color refers to the color or complexion of a person's skin. Discrimination by an employer based on color violates Title VII. Color discrimination cases are not brought as often as cases involving other forms of discrimination.

Protection from Retaliation

Federal antidiscrimination laws prohibit employers from engaging in retaliation against an employee for filing a charge of discrimination or participating in a discrimination proceeding concerning race, color, national origin, gender, religion, age disability, and genetic information. Act of retaliation include dismissing, demoting, harassing, or other methods of reprisal.

Racial and National Origin Harassment

It is unlawful to harass a person because of his or her race, color, or national origin if it is so severe that it creates a hostile work environment. Ex: Racial slurs, offensive or derogatory remarks about a person's race or color or national origin, offensive name calling, or the display of racially offensive symbols.

Gender Harassment (Sexual Harassment)

Lewd remarks, touching, intimidation, posting of indecent materials, and other verbal or physical conduct of a sexual nature that occurs on the job. When supervisors and coworkers engage in conduct that is offensive because it is sexually charged. Sexual harassment is an insidious and pervasive type of harassment in the workplace. The victim and the harasser can be either a man or a women and the victim and the harasser can be of the same sex. Thus, same-gender harassment or same-sex harassment violates Title VII.

English-Only Rules in the Workplace

Many employers have adopted English-only rules for the workplace. The issue is whether these rules are lawful or if the create national origin discrimination, in violation of Title VII. The EEOC states that an English-only rule that is justified by "business necessity" is lawful. Thus, an English-only rule that is limited to the work area is usually lawful. That is, employees are free to speak a language other than English during breaks, lunch time, and before and after work while still on the premises. An employer English-only rule that prohibits the use of a non-English language in the entire work premises at all times is usually presumed to be national origin discrimination, in violation of Title VII. An employer's rule requiring that employees be bilingual to qualify for a job does not violate Title VII as long as there is justification for the rule.

Title I of the ADA

Prohibits employment discrimination against qualified individuals with disabilities in regard to job application procedures, hiring, compensation, training, promotion, and termination. Covers employers with 15 or more employees. The US and corporations wholly owned by the US are exempt from Title I coverage. (?) Administered by the EEOC. An aggrieved individual must first file a charge with the EEOC, which may take action against the employer or permit the individual to pursue a private cause of action. If a disability discrimination lawsuit is successful, the court can issue an injunction against the employer, order the hiring or reinstatement (with back pay) of the discriminated-against individual, award attorney's fees, and order the employer to pay compensatory and punitive damages to the discriminated-against individual; the dollar amounts are subject to the same caps as Title VII damages.

Equal Opportunity in Employment

The rights of all employees and job applicants (1) to be treated without discrimination and (2) to be able to sue employers if they are discriminated against.

Genetic Information Discrimination

Discrimination based on information from which it is possible to determine a person's propensity to be stricken by diseases. With genetic information, it is possible to determine a person's propensity to be stricken by many diseases, such as diabetes, heart disease, multiple sclerosis, and certain types of cancers. Employers can misuse genetic information if they have access to or knowledge of an applicant's or an employee's genetic information or his or her family's genetic information.

Equal Employment Opportunity Commission (EEOC)

The federal administrative agency that is responsible for enforcing most federal antidiscrimination laws. Members are appointed by the US president. The EEOC is empowered to conduct investigations, interpret the statutes, encourage conciliation between employees and employers, and bring suits to enforce the law. The EEOC can also seek injunctive relief. The EEOC has jurisdiction to investigate charges of discrimination based on race, color, national origin, gender, religion, age, disability, and genetic information.

Defenses to a Title VII Action

Employers can select or promote employees based on merit. Merit decisions are often based on work, educational experience, and professionally developed ability tests. To be lawful under Title VII, such a requirement must be job related. Many employers maintain seniority systems that reward long-term employees. Higher wages, fringe benefits, and other preferential treatment (choice of working hours, choice of vacation schedule) are examples of such rewards. Seniority systems provide an incentive for the individual to stay with the company and are lawful if they are not the result of intentional discrimination.

Racial Discrimination

Employment discrimination against a person because of his or her race. Race discrimination in employment violates Title VII.

The EEOC recognized the following racial classifications:

1. African American - A person having origins in any of the black racial groups of Africa. 2. Asian - A person having origin in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent. 3. Caucasian - A person having origins in any of the original peoples of Europe, the Middle East, and North America. 4. Native American - A person having origins in any of the original peoples of North, South, or Central America 5. Pacific Islander - A person having origins in any of the original peoples of Hawaii and the Pacific Islands

Limits on Employer Questions

Title I of the ADA limits an employer's ability to inquire into or test for an applicant's disabilities. Title I forbids an employer from asking a job applicant about the existence, nature, and severity of a disability. An employer may inquire, however, about the applicant's ability to perform job-related functions.Preemployment medical examinations before a job offer are forbidden. Once a job offer has been made, an employer may require a medical examination and may condition the offer on the examination results, as long as all entering employees are subject to such examination. The information obtained must be kept confidential.

Qualified Individual with a Disability

A person who has a physical or mental impairment that substantially a major life activity, who with or without reasonable accommodation, can perform the essential functions of the job that person desires or holds. They must be able to show that he or she has a disability in one of three ways: 1. A physical (physiological) or mental (psychological) impairment that substantially limits one or more of his or her major life activities, such as walking, talking, seeing, hearing or learning. 2. A history of such impairment, such as cancer 3. Regarded as having such impairment even if he or she does not have the impairment. A physiological impairment includes any physical disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine. Impairment also included mental or psychological disorders, such as intellectual disability (metal retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Affirmative Action

A policy providing that certain job preferences will be given to members of minority racial and ethnic groups, females, and other protected-class applicants when an employer makes an employment decision. Employers often adopt an affirmative-action plan to accomplish this. Such plans can be adopted voluntarily by employers, undertaken to settle a discrimination action, or ordered by the courts. To be lawful, an affirmative-action plan must be narrowly tailored to achieve some compelling interest. Employment quotas based on a specified number or percentage of minority applicants or employees are unlawful. If a person's minority status is only one factor of many considered in an employment decision, that decision will usually be considered lawful.

Title VII of the Civil Rights Act of 1964

A title of a federal statute enacted to eliminate job discrimination based on five protected classes: race, color, religion, sex, and national origin. Applies to (1) employers with 15 or more employees, (2) all employment agencies, (3) labor unions with 15 or more members, (4) state and local governments and their agencies, and (5) most federal government employment. native American tribes and tax-exempt private clubs are expressly excluded from coverage. Prohibits discrimination in hiring, decisions regarding promotion or demotion; payment of compensation and fringe benefits; availability of job training and apprenticeship opportunities; referral systems for employment; decisions regarding dismissal; work rules; and any other "term, condition, or privilege" of employment. Any employee of a covered employer, including undocumented aliens, may bring actions for employment discrimination under Title VII. US citizens employed by US-controlled companies in foreign countries are covered by Title VII. Foreign nationals employed in foreign countries by IS-controlled companies are not covered by Title VII. Concept Summary on page 555

Bona Fide Occupational Qualification (BFOQ)

A true job qualification. Employment discrimination based on a protected class other than race or color is lawful if it is job-related and a business necessity. This exception is narrowly interpreted by the courts. An employer can justify discrimination based on gender in some circumstances. Ex: Allowing only women to be locker-room attendants in a women's gym is a valid BFOQ. Prohibiting males from being managers or instructors at the same gym would not be a BFOQ.

Right to Sue Letter

A letter that is issued by the EEOC if it chooses not to bring an action against an employer that authorizes a complainant to sue the employer for employment discrimination.

Gender Discrimination (Sex Discrimination)

Discrimination against a person because of his or her gender. Title VII prohibits discrimination based on gender. Gender discrimination occurs when an employer treats a job applicant or employee unfavorably because of that person's sex. Although the prohibition against sex discrimination applies equally to men and women, the majority of Title VII sex discrimination cases are brought by women. Sex discrimination in violation of Title VII occurs where an employer engages in direct sex discrimination. Ex: An employer refuses to promote a qualifies female because of her gender. Title VII also prohibits any form of gender discrimination where sexual favors are requested in order to obtain a job or be promoted. This is called quid pro quo sex discrimination. Sex-plus discrimination occurs when an employer does not discriminate against a class as a whole but treats a subset of the class differently. Courts have held that sex-plus discrimination violates Title VII. Ex: An employer does not discriminate against females in general, but does discriminate against marries women or women with children. Sex discrimination can also involce treating someone less favorable because of his or her connection with an organization or group that is generall assocaited with people of a certain sex. Lesbian, ga, bisexual, and transgender individual may bring sex discrimination claims, such as when an employer takes an adverse action because of the person's nonconformance with sex stereotypes. Discrimination against an individual because that person is transgender is sex discrimination that violates Title VII. This is known as gender identity discrimination.

Criteria that Justify a Differential in Wages

The Equal Pay Act expressly provides four criteria that justify differential in payment systems: 1. Seniority 2. Merit (as long as there is some identifiable measurement standard) 3. Quantity or quality of product (commission, piecework, or quality control-based payment systems are permitted) 4. "Any factor other than sex" (shift differentials, such as night versus day shifts) The employer bears the burden of proving these defenses.

Civil Rights Act of 1866

A federal statute enacted after the Civil War and Section 1981 states that all persons "have the same right... to make and enforce contracts... as is enjoyed by white persons." This act was enacted to give African Americans, just freed from slavery, the same right to contract as whites. Section 1981 expressly prohibits racial discrimination; it has also been held to forbid discrimination based on national origin. Employment decisions are covered by Section 1981 because the employment relationship is contractual. Although most racial and national origin employment discrimination are brought under Title VII, a complainant might bring an action under Section 1981 for two reasons: (1) A private plaintiff can bring an action without going through the procedural requirements of Title VII, and (2) there is no cap on the recovery of compensatory or punitive damages under Section 1981.

Americans with Disabilities Act (ADA)

A federal statute signed into law July 26, 1990 that imposes obligations on employers and providers of public transportation, telecommunication, and public accommodations to accommodate physically challenged individuals. It is the most comprehensive piece of civil rights legislation since the Civil Rights Act of 1964.

Harassment

Conduct where supervisors and coworkers engage in that is offensive because it is sexually, racially, ethnically, or religiously charged. Ex: Lewd remarks, offensive or sexually or racially oriented jokes, name calling, slurs, intimidation, mockery, and insults or put-downs. The US Supreme Court has held that sexual harassment that is so severe pr frequent that it creates a hostile work environment violates Title VII. To determine what conduct creates a hostile work environment, the US Supreme Court has stated, "Whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physical threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." An isolated incident or offhand remark that is not very serious and that does not create a hostile work environment or adverse employment decision does not violate Title VII.

Reverse Discrimination

Discrimination against a group that is usually thought of as a majority. Title VII also protects members of majority classes from discrimination. Lawful affirmative-action plans have an effect on members of majority classes. The courts have held that if an affirmative-action plan is based on preestablished numbers or percentage quotas for hiring or promoting minority applicants, then it causes illegal reverse discrimination. In such cases, the members of the majority class may sue under Title VII and recover damages and other remedies for reverse discrimination.

Classification of a Harasser

Determining liability of an employer for harassing conduct of an employee involves different liability rules depending on whether the harassing employee is a coworker or supervisor. If an employee who harasses another employee is a coworker, then the employer is liable if it was negligent in controlling the working situation. In this situation, an employer may not invoke an affirmative defense. Ex: An employer knew or reasonably should have known about harassment but failed to take remedial action. For Title VII purposes, a supervisor is narrowly defined as a person who is embowed by the employer to take tangible employment actions against the victim, such as making decisions regarding hiring and firing, promotion and demotion, reassignment, or a significant change in benefits. A person who does not have this authority is considered a coworker for Title VII purposes, even if that person has some other supervisory responsibilities. If a supervisor harasses an employee by causing a tangible employment action, such as the victim being terminates, demoted, or denied employment benefits, the the employer is strictly liable for the harassing supervisor's conduct. That is, the employer cannot raise a defense to avoid liability. Ex: A supervisor harasses an African American employee and then demotes her without cause. If a supervisor harasses an employee but not tangible employment action is taken, that is, the victim is not terminated, demoted, or denied employment benefits, then the employer is vicariously liable unless it can prove the following affirmative defense: 1. The employer exercised reasonable care to prevent, and promptly correct, and sexual harassing behavior, and 2. The plaintiff-employee unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. The defendant-employer has the burden of proving this affirmative defense. In determining whether the defense has been proven, a court considers (1) whether the employer has an antiharassment policy, (2) whether the employer has a complaint mechanism in place, (3) whether employees were informed of the antiharassment policy and complaint procedure, and (4) other factors that the court deems relevant. Most employers require employees to take training courses, either in person or online, that informs employees of what constitutes harassment, the business's antiharassment policy, and the complaint procedure. Concept Summary on page 551

Complaint Process

If a person believes that he or she has been discriminated against in the workplace, he or she cannot immediately file a lawsuit against the employer. The complainant must first file a compliant with the EEOC. The EEOC often requests that the parties try to resolve their dispute through mediation. If mediation does not work, the EEOC will investigate the charge. If the EEOC finds a violation, it will decide whether to sue the employer. If the EEOC sues the employer, the complainant cannot sue the employer. In this case, the EEOC represents the complainant. If the EEOC finds a violation and chooses not to bring suit or does not find a violation, the EEOC will issue a right to sue letter to the complainant. If a state has a Fair Employment Practices Agency (FEPA), the complainant may file his or claim with FEPA instead of the EEOC. Often a complainant will file a complaint with a FEPA if state law provides protection form discrimination not covered by federal laws or if the FEPA's procedure permits a filing date that is longer than that of the EEOC. The FEPA complaint process is similar to that of the EEOC.

Uncovered Conditions

The ADA expressly states that certain impairments are not covered. Temporary or nonchronic impairment of short duration with little or no residual effects usually are not considered disabilities. Pregnancy is not considered a disability under the ADA. However, impairments resulting from pregnancy, such as preeclampsia, are disabilities under the ADA. A current user of illegal drugs or an alcoholic who uses alcohol or is under the influence of alcohol at the workplace is not covered by the ADA. However, former users of illegal drugs and recovering alcoholics could meet the definition of disability if they have successfully completed a supervised rehabilitation program. It is unlawful to harass a job applicant or employee because he or she has a disability, had a disability in the past, or is believed to have a physical or mental impairment. Harassment could include, for example, offensive remarks about a person's disability. The ADA also protects people form employment discrimination based on their relationship with a person with a disability.

Americans with Disabilities Act Amendment Act (ADAAA) of 2008

Amended the ADA. The primary purposes were to expand the definition of disability, require that the definition of disability be broadly construed, and require commonsense assessments in applying the provisions of the ADA and ADAAA.

The two major forms of employment discrimination that Title VII prohibits

Disparate-treatment discrimination and disparate-impact discrimination

Race and Color Disrimination

The Civil Rights Act of 1964 was enacted primarily to prohibit employment discrimination based on a person's race and color. Title VII provides equal opportunity in employment for minority job applicants and minority employees seeking promotion. Unlawful discrimination occurs if an employer treats person unfavorable because they are married to or associate with a person of a certain race or color or because of a person's connection with a race-based organization or group.

Equal Pay Act

A federal statute passed in 1963 that protects both sexes from pay discrimination based on sex. The act covers all levels of private-sector employees and state and local government employees. Federal workers are not covered, however. The act prohibits disparity in pay for jobs that require equal skill (equal experience), equal effort (mental and physical exertion), equal responsibility (equal supervision and accountability), and similar working conditions (dangers of injury, exposure to the elements). To make this determination, the courts examine the actual requirements of jobs to determine whether they are equal and similar. if two jobs are determined to be equal and similar, an employer cannot pay disparate wages to members of different sexes. Job content, not job titles, determines whether positions are substantially equal. All forms of pay are covered by the act, including salary, overtime pay, bonuses, profit sharing plans, insurance, vacation and holiday pay, reimbursement of expenses, and benefits. Employees can bring a private cause of action against an employer for violating the Equal Pay Act. Back pay and liquidated damages are recoverable. The employer must increase the wages of the the discriminated-against employee to eliminate the unlawful disparity of wages. The wages of other employees may not be lowered.

Genetic Information Nondiscrimination Act (GINA)

A federal statute that makes it illegal for an employer to discriminate against job applicants and employees based on genetic information. Thus, an employer may not use genetic information in making employment decisions, including decisions to hire, promote, provide benefits, or terminate, other employment decisions. GINA is administered by the EEOC and other federal government agencies. Remedies for violations include corrective action and monetary fines. Individuals have the right to pursue lawsuits to seek hiring, reinstatement, back pay, and compensatory and punitive damages. Inadvertent discovery of genetic information (the "water cooler" exemption) and voluntary submission of genetic information to an employer (as part of a wellness program) do not violate the act. The misuse of such information does violate the act. Under GINA, it is illegal to harass an applicant or employee because if his or her genetic information.

Lilly Ledbetter Fair Pay Act of 2009

A federal statute that permits a complainant to file an employment discrimination claim against an employer within 180 days of the most recent paycheck violation and to recover back pay for up to 2 years proceeding the filing of the claim if similar violations occurred during the two-year period. The Civil Rights Act provided that a rejected applicant for a job or an employee who suffers pay discrimination must file a discrimination lawsuit within 180 days of the employer's act that causes the discrimination. This act restarts the statutory 180-day clock.

Age Discrimination and Employment Act (ADEA) of 1967

A federal statute that prohibits age discriminaiton practices against employees who are 40 years and older. The ADEA prohibits age discriminiation in all employment decisions, including hiring, promotions, payment of compensation, and other terms and conditions of employment. Employers cannot use employment advertisements that discriminate against applicants covered by the ADEA. Because persons under 40 are not protected by the ADEA, an employer can maintain an employment policy of hiring only workers who are 40 years of age or older without violating the ADEA. However, some state laws protect persons under the age of 40 from being discriminated against. Under ADEA, an employer can maintain an employment practice whereby it gives preferential treatment to older workers over younger workers when they are both within the 40 years and over category. Ex: An employer can legally prefer to hire persons 50 years of age and older over persons age 40 to 49. Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40. It is unlawful to harass a person because of his or her age if it is so severe that it creates a hotile work environment. The ADEA permits age discrimination where a bona fide occupational qualification BFOQ is shown. A BFOQ may be asserted as a necessary qualification of the job or for public safety. Ex: Hiring a young person to play a young character in a movie or play is lawful BFOQ. Seting an age limit for pilots would be a lawful BFOQ for public safety reasons. The ADEA is administered by the EEOC. Private plaintiffs can also sue under the ADEA. A successful plaintiff in an ADEA action can recover back wages, attorneys' fees, and equitable relief, including hiring, reinstatement, and promotion. Where a violation of the ADEA is found, the employer must raise the wages of the discriminated-against employee. It cannot lower the wages of other employees.

Disparate-Impact Discrimination

A form of discrimination that occurs when an employer discriminates against a protected class. An example if discrimination in which a racially neutral employment practice or rule (applicants must be at least 5 feet 8 inches tall) causes an adverse impact on a protected class (less females are hired for position). Many disparate-impact cases are brought as class action lawsuits. This type of discrimination is often proven through statistical data about an employer's employment practices. The plaintiff must demonstrate a casual link between the challenged practice and the statistical imbalance. Showing a statistical disparity between the percentages of protected class employees and the percentage of the population that the protected class makes within the surrounding community is not enough, by itself, to prove discrimination.

Disparate-Treatment Discrimination

A form of discrimination that occurs when an employer discriminates against a specific individual and treats them less favorably than others because of his or her race, color, national origin, sex, or religion. The complainant must prove that (1) he or she is a member of a Title VII protected class, (2) he or she applied for and was qualified for the employment position, (3) he or she was rejected despite this, and (4) the employer kept the position open and sought application from persons with the complainant's qualifications. The minority applicant has a prima facie case of illegal discrimination. The burden of proof shifts to the employer to prove a nondiscriminatory reason for its decision. If the employer offers a reason, such as saying that the minority applicant lacked sufficient experience, the burden shifts back to the minority applicant to prove that this was just a pretext (not the real reason) for the employer's decision.

Civil Rights Act of 1964

A historical and sweeping civil rights law that prohibited discrimination based on race, color, national origin, gender, and religion in public accommodations (motels, hotels, restaurants, theaters), by state and municipal government public facilities, by government agencies that receive federal funds, and in employment. Some portions of the act prohibit discrimination is employment, housing, education, and other facets of life.

Remedies for Violations of Title VII

A successful plaintiff in a Title VII action can recover back pay and reasonable attorney's fees.The courts also have broad authority to grant equitable remedies. For instance, the courts can order reinstatement, grant fictional seniority, and issue injunctions to compel the hiring or promotion of protected minorities. A court can award punitive damages against an employer in a case involving an employer's malice or reckless indifference to federally protected rights. The sum of compensatory and punitive damages is capped at different amounts of money, depending on the size of the employer. Title VII imposes liability on employers. Courts have routinely refused to hold individual employees liable under Title VII or other federal antidiscrimination laws.

Religious Discrimination

Discrimination against a person because of his or her religion or religious practices. Title VII prohibits employment discrimination based on a person's religion. The right of an employee to practice his or her religion is not absolute. Under Title VII, an employer is under a duty to reasonably accommodate the religious observances, practices, or beliefs of its employees if doing so does not cause an undue hardship on the employer. An employer is liable for religious discrimination if it does not make a reasonable accommodation for an employee's religious beliefs that could be done without causing an undue hardship on the employer. Undue hardships may occur if the requested accommodation would be costly, compromise workplace safety, decrease workplace efficiency, infringe on the rights of other employees, or require other employees to do more than their share of potentially hazardous or burdensome work. Employees often request an accommodation to observe their religious holidays. Common accommodations to accomplish this include flexible scheduling, voluntary shift substitutions or swaps, and job reassignments. The extent of the accommodation depends on factors such as the size of the employer, the importance of the employee's position, and the availability of alternative workers. Ex: If an employer has 500 employees, it would likely not cause an undue hardship on the employer to get another worker to cover for one day. Employers must also accommodate dress and grooming practices if it would not cause an undue hardship to do so. Title VII prohibits workplace or job segregation based on religion, such as assigning an employee to a noncontract position because of actual or feared customer preference. Religious discrimination occurs if an employer treats an employee or job applicant different because he or she is marries to or associated with an individual of a particular religion. It is illegal to harass a person because of his or her religion. Such harassment violates Title VII if it is so severe that it creates a hostile work environment. Title VII also expressly permits religious organizations to give preference in employment to individuals of a particular religion.

Electronic Communication: Sexual and Racial Harassment

Electronic communication has increased the exposure of employees to sexual and racial harassment and therefore employers to lawsuits. The standard of whether an electronic communication creates an illegal hostile work environment is the same: the offensive conduct must be severe and cannot consist of isolated or trivial remarks and incidents. Electronic harassment is subtle and insidious. It created evidence that is often recoverable and therefore provides harassed employees the ability to prove the harassment. Employers must adopt policies pertaining to the use of e-mail, texting, and other electronic communications and make their employees aware that certain electronic messages constitute harassment and violate the law. Employers should make periodic inspections and audits of stored electronic communications to ensure that employees are complying with company antharassment policies.

National Origin Discrimination

Employment discrimination against a person because of his or her heritage, cultural characteristics, or the country of the person's ancestors. National origin refers to the place of origin of a person's ancestors; physical, linguistic, or cultural characteristics; or heritage.Would include discrimination against employees or job applicants of a particular nationality (persons of Irish decent), against persons who come from a particular country (Iran), against persons of a certain culture (Hispanics), or against persons because of their accents. Discrimination by an employer based on a person's national origin or heritage violates Title VII. National origin discrimination occurs if an employer treats persons unfavorably because they are married to or associate with a person of a certain national origin. An employer may not base an employment decision on an employee's foreign accent unless the accent interferes with he employee's job performance.