Finding the Facts - Disciplinary and Harassment Investigation

3. R EVIEW THE A LLEGATIONS : W HAT T YPE OF D ISCRIMINATION OR H ARASSMENT ? Investigations are better focused and elicit more relevant information if the nature of the complaint is well understood. After a complaint of discrimination or harassment has been received and documented, the allegations must be reviewed to determine what type of discrimination or harassment is alleged in the complaint. Unlawful harassment includes both hostile work environment and quid pro quo sexual harassment. Keep in mind that harassing conduct may violate an district’s policy even though it would not constitute unlawful harassment. a. Hostile Work Environment For hostile work environment harassment to be unlawful, the conduct must be based on the alleged victim’s protected status or the perception of a protected status, such as his/her:

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Race

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National Origin or Ancestry

 Sex (including gender and pregnancy)

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Age (40 years and older)

 Physical or Mental Disability, or Medical Condition

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Religion

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Marital Status

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Sexual Orientation

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Gender identity and expression

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Genetic information

 Opposition to Unlawful Harassment (i.e., retaliation)

Harassment based on sex includes harassment of a sexual nature, gender harassment, and harassment based on pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. 45 Whether motivated by hostility or by sexual interest, harassing conduct of a sexual nature, is always based on sex, regardless of the gender of the alleged victim or the sexual orientation of the harasser. Thus, same sex harassment and harassment by a homosexual employee of an employee of the opposite sex are also unlawful. 46 Further, in evaluating the severity and pervasiveness of sexual harassment, courts may focus on the perspective of the victim. 47

A work environment is hostile if:

 The conduct is so offensive that it interferes with an employee’s work performance. Effective January 1, 2019, a plaintiff no longer needs to prove his or her “tangible productivity” declined as a result of harassment; a plaintiff simply needs to show a “reasonable person” would find the harassment made it more difficult to work. 48

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 17