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Stephanie Jane Hahn, Attorney At Law
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Indianapolis Employment Law Blog

Care is required when advancing earnings to employee

Employers in Indiana who pay their employees on commission should be mindful of Department of Labor rules regarding paying 'draws" against future commissions. Even an unused written policy can cause problems in the future.

In a recent US Court of Appeals Sixth Circuit decision, the court determined that a written payment policy containing an improper provision could give rise to a wage and hour claim, even if the provision was never enforced. The claim arose on several allegations regarding payment of earnings.

The majority of transgender workers experience discrimination

Nearly all transgender workers in Indiana and across the United States have suffered on-the-job harassment or discrimination, according to a new report by the U.S. Commission on Civil Rights. As a result, the organization is calling on Congress to pass legislation that explicitly protects LGBT people from discrimination in the workplace.

The commission's report found that 90 percent of transgender workers experienced workplace discrimination. Of those, approximately 25 percent were not allowed to use bathrooms that matched their gender identity or were told to present as a different gender to avoid being fired. Around one-quarter of respondents also had information about their gender identity disclosed by a colleague or supervisor without their permission. More than 70 percent of transgender workers said they dealt with discrimination by hiding their gender identity, delaying their gender transition or quitting their job. The report also found that more than half of all LGBT employees earn less money, are denied promotions, are terminated from their jobs and experience difficulty finding work.

Sexual harassment underreported, dismissed in court

When people in Indiana and throughout the country take charges of sexual harassment before the legal system, those cases are often dismissed by judges. Nationwide, only 3 to 6 percent of sexual harassment cases make it to trial.

However, problems in addressing sexual harassment begin even earlier than that. It is estimated that although around 25 to 50 percent of women experience harassment in the workplace, no more than 15 percent report its occurrence. Retaliation is one of the main reasons that prevent this reporting, but many people also are discouraged by the high dismissal rate by courts.

One-third of Native Americans face workplace discrimination

Indiana residents may be surprised to learn that more than one-third of Native Americans report that they have experienced race-based slurs, harassment, violence and discrimination in the workplace, according to a new survey. The survey was administered on behalf of the Harvard T.H. Chan School of Public Health, National Public Radio and the Robert Wood Johnson Foundation.

The survey was intended to explore the personal discrimination experiences of certain groups, including Native Americans, African Americans, Latinos, Asian Americans, white Americans and LGBTQ adults. A sample of 3,453 people were contacted between January 26 and April 9, 2017, 342 of whom were Native American. When reporting personal experiences of discrimination, 35 percent of Native Americans said they had personally experienced slurs, and 39 percent said they had heard offensive or insensitive comments regarding their race or ethnicity. In terms of the workplace, 33 percent of Native Americans reported experiencing race-based discrimination when seeking a promotion or raise, and 31 percent said they had experienced discrimination when applying for jobs.

Sexual harassment in the workplace

Recent allegations made against powerful people in entertainment and politics have shone new light on sexual harassment across all industries and in all states, including Indiana. An outgrowth of the newfound focus on workplace sexual misconduct is the "me too" campaign, which has provided a platform for men and women to come forward with details of their experiences working in diverse work environments. Companies large and small have and do face legal actions based on the manner in which they handle sexual harassment cases.

Even with the prevalence of workplace sexual misconduct, only 30 percent of those experiencing harassment lodge a complaint with their employers. An even smaller percentage of those complaining file charges with the Equal Employment Opportunity Commission. The EEOC, which investigates meritorious sexual harassment claims, received 27,000 sexual harassment complaints in 2016.

What employers can learn from Hollywood

Allegations of sexual harassment in Hollywood may be getting the attention of the mainstream media at the moment. However, the lessons learned in those cases could be helpful for Indiana employers. Ideally, when a worker reports an incident of sexual harassment, his or her employer will work to resolve the situation properly instead of trying to make it go away. Investigations should be prompt, thorough and properly documented regardless of the nature of the harassment.

Employers should work to take steps to make sure that the problem is dealt with correctly and efficiently. This may involve updating training manuals or harassment policies. It also is important to understand that not every allegation is true or being articulated accurately. Therefore, companies should take their time before suspending an employee based on an accusation that may or may not be proven to be true.

How employees can help prevent harassment in the workplace

Although sexual harassment does occur in workplaces, not everyone is actively involved. There are sometimes witnesses who have observed the harassment or have heard of incidents occurring. Indiana employees can help prevent future incidents by taking action.

Those who see a coworker being harassed can prevent further harm from occurring by saying something. By saying something as a harasser is making inappropriate comments or advances shows the harasser and the person being harassed that others are aware inappropriate behavior is happening and that it is not viewed positively. Another way employees can help prevent future harassment is to speak up even when targeted coworkers are not present. For example, if male employees are speaking inappropriately about a female coworker, calling them out can have a positive effect.

Over one-third of workers with disabilities report discrimination

The number of disabling conditions, as defined by federal regulations, present among workers in Indiana is largely invisible. A study from the Center for Talent Innovation that surveyed college-educated workers in white collar positions found that roughly 30 percent of them had a disability of some kind, such as migraine headaches, autism or chronic disease. Among those disabled people, 62 percent of them had invisible problems that prevented others from recognizing their disabilities.

The survey results differed significantly from the figures reported by the National Organization on Disability, which recorded that 3.2 percent of workers informed their employers formally about their disabilities. Fear of discrimination typically motivated people to maintain privacy about their difficulties. Responses on the CTI study indicated that discrimination affected more than one-third of disabled workers. People reported that knowledge of their disability made others think that they lacked skills or would work too slowly. For people with visible disabilities, discrimination occurred more often with 40 percent of them experiencing negative treatment.

Overview of workplace sexual harassment

Title VII of the Civil Rights Act of 1964 protects men and women from sexual harassment at work. The act enables Indiana workers to challenge unwelcome sexual advances, supervisors asking for sex, sexual touches, verbal harassment or sexually offensive remarks. Although the occasional lewd joke or teasing statement will not meet the definition of sexual harassment, a workplace where the behavior is pervasive or a specific employee endures continual mistreatment could be in violation of the law.

Illegality emerges when the targeted employee does not welcome the sexual comments or physical attention and feels abused by the behavior. Ongoing misconduct inspired by the person's sex could translate into labeling the entire workplace hostile. A court might deem a workplace hostile if a "reasonable person" would consider the place uncomfortable and unpleasant.

Hostile work environment case alleges management favored rapist

Employers in Indiana that disregard the criminal conduct of an employee outside of work could end up involved in litigation if one or more co-workers experienced discomfort in the alleged criminal's presence. A case involving a female employee of another state's department of corrections has been remanded back to the trial court after an appeals court found validity in her claim of a hostile work environment.

The man accused of raping a co-worker outside of work had existing complaints about his behavior from other female co-workers. Management placed him on paid leave while investigating the rape accusation. One of the female co-workers accusing him obtained a civil protective order to keep him away from her. At this time, management told staff that they eagerly anticipated his return to work. Management also sent an email encouraging co-workers to offer support to the man on leave.

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