Employers Should Consider Age and Disability Harassment in Their Employment Policies

Article excerpt

A foreman makes demeaning comments about a worker's learning disability. Could be a lawsuit.

Employees post cartoons making fun of older people on a bulletin board. Could be a lawsuit.

A bookkeeper forwards e-mails to coworkers containing distasteful Helen Keller jokes. Could be a lawsuit.

A supervisor wonders casually if an older employee "still has what it takes to do a job." Could be a lawsuit.

When employers hear "harassment," they tend to think "sexual harassment." Many anti-harassment policies go into exhaustive detail prohibiting sexual harassment but only mention other forms of prohibited harassment in passing. Employers should, however, be aware of the perils involved with neglecting such other forms of harassment based on race, ethnicity, religion, age, or disability.

There is strong evidence that employers must address all forms of harassment. When Congress enacted the Americans with Disabilities Act (ADA), for example, it estimated that about 43 million people in America had a disability covered by the ADA. Disabilities range from obvious physical impairments to less conspicuous conditions like chronic depression, dyslexia, and HIV infection.

Courts have interpreted the ADA to require employers to protect qualified disabled workers from a hostile work environment (a.k.a. harassment) based on a disability. Employers should therefore make sure they are not leaving themselves exposed to claims for disability harassment.

Employers need to protect themselves from age-based harassment claims too. According to the Bureau of Labor Statistics, the median age of the labor force will be 40.7 by 2008. Thus, a significant percentage of the workforce is or will soon be covered by the Age Discrimination in Employment Act (ADEA), a statute that protects workers aged 40 and older. Although there have not been a significant number of age harassment lawsuits, the fact that our workforce is getting older could be a sign of claims to come.

Any unwelcome comment or conduct on the job can be construed as harassment based on age, disability, or some other protected status if it creates an intimidating working environment. An employee does not necessarily have to establish a pattern of offensive behavior to win a harassment lawsuit. A single incident of harassment, if serious enough, could result in the employer being held liable unless it has taken precautions to avoid liability.

Accordingly, to reduce the risk of being sued for harassment and to increase the chances of winning a harassment lawsuit, an employer should:

Adopt clear anti-harassment policies. …