Category Archives: Discrimination

HR Thursday: Dress for the Weather

If you want to avoid the nightmare of harassment claims in your business, then you must DRESS FOR THE WEATHER! 

Watch this VIDEO to understand what I mean…

PREVENTION, STEP 1:  Provide written policy and regular communication. 

A well-written harassment policy should do the following:

  • Define what constitutes harassment (you learned that on this very blog a few weeks ago)

  • Explicitly state that “harassment of any kind will not be tolerated

  • Outline reporting channels and methods, and insist employees report any harassment concern

  • Assure employees that a complaint will be treated as confidentially as possible

  • Notify staff that investigations will be initiated upon receiving a complaint to determine its validity

  • Inform staff that appropriate disciplinary action, which may include discharge, will be taken against any guilty offenders

This policy should be:

  1.  Included in your policy manual

  2. Covered in orientation programs for new hires

  3. Redistributed at least annually for continued emphasis

  4. Referenced during antiharassment training programs (at a minimum)

Taking these steps will ensure that all employees know or should know the policy and procedure at your business.  Don’t just issue the policy once and never revisit it.  Ongoing communication is vital, and may possibly save you a lot of money!

Have you ever paid the price for NOT being prepared?

All of the facts and stats on todays post are taken from a 2010 article in Dental Economics by Tim Twigg and Rebecca Crane of  Bent Ericksen & Associates 

Harassment: How NOT to become TOAST!


HARASSMENT LIABILITY STEMS FROM LACK OF PREVENTION OR ACTION FROM THE EMPLOYER



Last weeks post (Click here to read) was a lesson in the two types of harassment issues that you as an employer are most likely to deal with:

  1. Hostile work environment
  2. Quid pro quo

Those two forms of harassment were defined and described for you.  In the event that a claim is brought against you (the employer), two aspects will be reviewed to determine your liability.

1. Did the affected employee issue a complaint of harassment and then suffer a “tangible employment action” soon thereafter?
2. In the event of no tangible employment action, are you able to present an “affirmative defense”?

A tangible employment action may be any of the following:

  • Denying a raise
  • Termination of employment
  • Denying access to training
  • Demotion

Bottom line, if the complaining employee suffered a tangible employment action, you as the employer will likely be on the hook for liability because it will be viewed as retaliation.

An affirmative defense demonstrates that the employer took “reasonable care” to prohibit harassment.  Following are components of reasonable care:

  • A comprehensively written harassment policy
  • Regular communication of the policy
  • Antiharassment training
  • Investigation of complaints
  • Appropriate action taken with perpetrators when necessary
  • Periodic follow-up with the victims

If the above components are in place and the accusing employee does not avail him/herself of the proper procedures, then the employer will likely not be found liable. 


FAILURE TO ESTABLISH AN AFFIRMATIVE DEFENSE AND YOU, THE EMPLOYER ARE TOAST!

Any question as to why PREVENTION is absolutely imperative?


Now that you’re ready to listen, next week’s post will include the FIRST step toward prevention, and how you can avoid the nightmare of harassment!

Tune in next Thursday, same blog time, same blog channel for HR Thursday!

All of the facts and stats on todays post are taken from a 2010 article in Dental Economics by Tim Twigg and Rebecca Crane of  Bent Ericksen & Associates

HR Thursday: The Nightmare of Harassment Claims

Have a little R-E-S-P-E-C-T and watch this VIDEO before reading any further….

How can you keep a harassment claim from happening to you?  PREVENTION IS THE KEY.  Employers often find themselves in these situations because they didn’t take the necessary steps to prevent harassment from occurring, or stop the behavior when it happens.


Understanding Harassment.  Most harassment claims generally take one of two forms:

  1. Hostile work environment
  2. Quid pro quo

Most harassment allegations fall under the “hostile work environment” category.  This is typically defined as “conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment”.

Hostile environment harassment can include, but is not limited to:

  • Indecent propositions

  • Inappropriate discussion of sexual activities

  • Obscene or discriminatory jokes

  • Displaying sexually suggestive or racial pictures

  • Crude and offensive language

  • Ethnic slurs

  • Pranks

  • Negative stereotyping

These situations rise to the level of harassment when it is severe and pervasive and the employee feels offended, intimidated, or fearful as a result of another person’s action.


The other type of harassment is referred to as quid pro quo.  This type of harassment is alleged less frequently, and occurs when an individual is asked to submit to sexual conduct and perceives his/her job is conditioned on compliance.  Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute “quid pro quo” harassment when:

  • Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment

  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual

  • Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment

LIABILITY STEMS FROM LACK OF PREVENTION OR ACTION FROM THE EMPLOYER

All of the facts and stats on todays post are taken from a 2010 article in Dental Economics by Tim Twigg and Rebecca Crane of  Bent Ericksen & Associates

HR Thursday in the next few weeks will focus on what you as an employer can do to prevent a claim against you.


Tune in next week for another HR Thursday!  Same blog time, same blog channel.  

And don’t forget to have a little R-E-S-P-E-C-T while you’re navigating your fishbowl!

HR Thursday: Drug and Alcohol Testing

A recent article by Tim Twigg and Rebecca Crane of Bent Ericksen & Associates tells us to “Be Careful” when it comes to employee drug testing.

Let’s say one of your employees exhibits some, or all of the following behaviors:

  • Seems distracted and inattentive
  • He/she looks unkempt, tired and unprofessional
  • Sometimes you may smell an odor on him/her that could be alcohol or drugs

You’re determined to require a drug or alcohol test, feeling that if he/she fails, you’ll surely fire him/her, right?  Oh…if the issue were only that black and white.

Did you know that the Americans with Disabilities Act (ADA) considers some drug- and alcohol-related situations to be a disability, and therefore protects these people from illegal discrimination?  Your employee can be protected under the law if:

  • He/she is addicted to drugs
  • Has a history of addiction
  • He/she is currently in, or has completed a drug rehab program
  • He/she is not a “current” illegal drug user

Alcoholism is ALWAYS considered a disability, therefore if your employee is able to perform the functions of their job, he/she is protected under law.

Do’s and Don’ts of Recruiting

Illegal drug use is not considered a disability.  Therefore, questions and tests for illegal drugs are permissable.  Pre-employment tests for illegal drugs are often accompanied by a Conditional Offer of Employment Letter.

Conducting alcohol tests at the prehire stage is not allowable.  An employer should tread lightly with questions regarding alcohol use, since it could result in learning that the person has a disability, which is illegal to question at the preoffer stage.

Post-Hire Monitoring

Here are three common scenarios for drug and alcohol testing:

Reasonable suspicion–The employer has specific objective facts and rational inferences about an employee and suspects they are abusing drugs/alcohol

Post-accident–The employer has reasonable suspicion that an accident at work was caused or exacerbated by the use of drugs or alcohol

Random–The employer puts employees on alert that they may be “randomly” selected for a drug test at any time.

Implementing Drug and Alcohol Testing

The first step is to have a clear policy stating that you don’t tolerate illegal drug use, and explain the rules and consequences for violators.  If you don’t have a policy, you should NOT carry out any testing of employees.

Reasonable Accommodation

If the employer finds out that after an employee is hired that he/she has a drug.alcohol problem, it is considered a disability and the employer is obligated to reasonably accommodate the individual.  That means the employer must provide whatever is necessary for the employee to continue performing his/her job without causing hardship to the business or practice.

You can see that drug and alcohol testing is a legal minefield waiting to explode on unsuspecting employers.  Be cautious and seek counsel from a professional before you decide to test.

HR Thursday: Job Descriptions and Protecting your Investment

Watch this Video about JOB DESCRIPTIONS

Employers are required to comply with a long and ever growing list of employment laws and regulations:

  • The Americans with Disabilities Act
  • State Worker’s Compensation laws
  • Occupational Safety and Health Act

Not only do these regulations focus on what people do, i.e. the essential job duties, but also on how they do it (physical demands and work environment).


If an employee or a government agency challenges a hiring or employment decision, one of the most important documents you will be expected to provide is a copy of the job description.

A job Description:

  • Can prevent wrongful discharge lawsuits
  • Can prevent charges of discrimination from an applicant that you didn’t hire
  • Serves as a basis for performance reviews

A written job description for every position will also provide guidance when you are advertising for a new employee.  Properly worded and based on the job description, your recruiting activities will be far more successful at weeding out those applicants that are less qualified, which will save you time and money.  And it starts a new employee out with accurate expectations, keeping you from greater (and very expensive) turnover.


I’m happy to send you a job description for 1 or 2 positions in your healthcare practice.  Comment below…

Good luck navigating your fishbowl this week—I’ll see you soon for another Human Resources Thursday!