as
published in the Western Business Journal)
Despite the promulgation of laws designed to promote equality within the workplace, discrimination still occurs against certain groups of people. Claims for employment discrimination have been steadily on the rise in Montana (342 cases in the year 2000, compared to 235 in 1991), and have followed the general national trend of being one of the fastest growing areas of litigation. For this reason, among others, it is particularly important for employers as well as employees to have a fundamental understanding of an employment discrimination claim.
A claim of employment discrimination may be based on distinctions of one's race, creed, religion, color, national origin, age, physical or mental disability, marital status or sex. Employment discrimination occurs when the reasonable requirements of the position do not require such a distinction, and a term or condition of one's employment is adversely affected due to consideration of one or more of these protected classes.
Sexual harassment is a form of discrimination which often receives the most press in employment cases. Sexual harassment can be of two equally egregious types. The first type is referred to as "quid pro quo," which basically means "this for that." It is a trade off. The classic example of quid pro quo sexual harassment is the employer who makes sex a prerequisite to a prospective employee's obtaining a job, or a current employee's receiving a promotion. Quid pro quo can also be cast in the negative such as "You can either sleep with me or be fired."
The second type of sexual harassment is referred to as "the hostile work environment." A hostile work environment may be said to exist where the workplace is marked by ridicule, intimidation or insult so severe that it adversely alters the employee's terms, conditions or privileges of employment. A hostile work environment may involve sexual jokes, suggestive remarks, physical interference with movement or sexually derogatory comments. To be actionable, the conduct must be offensive. Jokes, pictures, touching, leering, and unwanted requests for a date have all been found to constitute sexual harassment.
Equality in the workplace is an ambitious, worthy goal. Early recognition of the types of conduct which may constitute discrimination can prevent costly and burdensome litigation in the future, and create a more productive and unified workforce from which everyone can benefit.
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