Human Rights Officer

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Human Rights Officer Discusses Discrimination, Harassment

Elaine Benedict with the Montana Human Rights Bureau of the Department of Labor and Industry provided those attending this year’s Annual Meeting with some insight into what constitutes discrimination and harassment and how her agency handles these human rights cases.

Benedict explained that when her agency looks at a charge of discrimination they first look to see if it is in employment, housing, education, government services, financial transactions, insurance or public accommodations. Then staff needs to determine whether the decision affecting the person making a discrimination charge is based on race, religion, creed, sex, disability, marital status, age, political belief or color. Benedict explained that these are “protected classes.” In short, it is unlawful to discriminate against someone in employment based on their religion, race, etc. She also explained what is involved when an employer and an employee work out a reasonable accommodation as it might relate to their religion, age or disability.

MPEA staff and members frequently hear that someone is being harassed. Benedict explained that illegal harassment is behavior that slanders or shows hostility toward another person. “Harassment creates an offensive, intimidating work environment and/or negatively affects a person’s work performance or employment opportunities,” Benedict explained. Some examples cited included repeated jokes, offensive pictures, offensive music lyrics, discussing a co-worker’s personal life with others, blocking someone’s movement and unwelcome physical touching. Such things as an offhanded comment and unfair treatment are not considered harassments, Benedict said. The behavior must, according to Benedict, be sufficiently frequent or sever to create a hostile work environment, or result in a tangible employment action.

Benedict detailed for members what constitutes sexual harassment. Such things as propositions for sexual favors, physical touching, repeated jokes, inappropriate comments about appearance can all be considered sexual harassment. Benedict pointed out that the harasser may be a woman or a man, and, that the victim does not have to be of the opposite sex. “The harasser can be a supervisor, an agent of the employer, a co-worker or a non-employee such as a vendor,” Benedict said. She also pointed out that the victim does not have to be the person harassed, but could be anyone affected by the offensive behavior. And, that if a supervisor knew about the harassment they have to inform the proper personnel. They can’t ignore complaints.

In order to protect themselves against charges of sexual harassment an employer needs a grievance or complaint policy, must communicate to employees that harassment will not be tolerated, follow up immediately when a complaint is received and make sure there is no retaliation for the complaint.

At the same time, employees have the responsibility to take steps to avoid harm from harassment and use the complaint procedure.

Montana has some of the better state statutes relating to maternity leave. Upon signifying her intent to return, the employee is to be reinstated to her original positions or equivalent positions with equivalent pay and benefits, unless it has become impossible or unreasonable to do so.

Benedict also spent time going over disability discrimination with members attending. She began by describing a disability as something that interferes with a major life activity. A disabled person must be able to perform the essential functions of the job with or without a reasonable accommodation, according to Benedict. The caveat here is that employers have a duty to assess an employee’s disability as it relates to a job qualification on an individual basis.

When asked about what constitutes a reasonable accommodation, Benedict explained that it would depend on cost, availability and necessity. She also pointed out that an unreasonable accommodation may be one that creates an undue hardship or eliminates an essential job function.

Benedict closed her presentation by reminding everyone that prevention is always the best tool. This will always involve communication, training, the posting of policies, a complaint procedure and some means to insure that there is no retaliation.

Last Modified: Wednesday August 27, 2008

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