Is Workplace Harassment Illegal?
In Nevada it is not illegal for a supervisor to harass an employee simply because he or she doesn’t like the employee’s work or doesn’t like the employee as an individual. Harassment is illegal only if it is based on a Title VII protected characteristic of the employee, such as his or her age, race, national origin, sex, religion or disability.
In addition, harassment must be severe or pervasive in order to violate the law. An isolated or occasional use of racial or ethnic slurs, or intermittent inappropriate jokes, while unprofessional, will not typically be considered a violation the law.
However, if one incident of harassment is severe enough, it may be considered a violation of the law. An example of such a severe violation might be a sexual assault or a beating by coworkers.
The harassing behavior must be offensive to a “reasonable person.” Behavior which offends a highly sensitive employee, but which would not offend a reasonable person in the same situation, would not violate the law. In determining whether the employee was offended personally, a court or jury will consider whether the employee willingly participated in the conduct, and whether he or she used reasonably available avenues of complaint to protest the conduct.
Finally, it is a requirement in Nevada that the employer be notified of the harassment. An employee who is a victim of harassment or discrimination should contact their supervisor or human resources representative, in writing, to ensure that the discriminatory or harassing conduct can be investigated by the company.
What is Disparate Treatment?
In Nevada, an employee must prove they have incurred some adverse employment action, such as demotion, failure to promote, or termination because of discrimination based on being a member of a protected class. (age, race national origin, gender, color, religion, disability, genetic information). It is not enough that a manager or boss did not promote you because he did not like you, or he preferred other people. The employee must prove that the adverse employment action was because of discrimination.
While playing favorites is normally not a good way to run a business, personal differences, including personality clashes, are by themselves insufficient to prevail in a lawsuit.
When can an Employee Be Fired?
In Nevada employment is presumed to be at will, an employee can be terminated for any reason, or no reason at all. If there is no employment contract, or collective bargaining agreement, there are only a few exceptions to the at-will presumption in the state. Specifically, an employer cannot fire an employee for discriminatory reasons that are protected by Title VII of the Civil Rights Act. These reasons include age, race national origin, gender, color, religion, disability, genetic information, as well as retaliation for complaining of discrimination based on one of these factors
Under the Americans with Disabilities Act, What Qualifies as a Disability?
Under the ADA an individual is classified as disabled if he or she meets one of the following definitions:
- The person has a physical or mental impairment that substantially limits one or more major life activities
- The person has a record of having, currently or in the past, a physical or mental impairment
- The person is regarded as having a physical or mental impairment
If an employee has a disability and employer has a duty to provide reasonable accommodations, provided that the disabled employee will still be able to perform all their essential job functions. An accommodation request should typically be made through the employer’s human resources department, or with a supervisor. Once notified, the employer has a duty to engage in the good faith interactive process to determine what accommodations can be made for the employee.
When may an employee be entitled to medical leave from work?
An employee who is injured or sick will usually not be limited solely to employer provided sick leave, vacation, or personal leave if he or she needs additional time off. There are many other types of leave that an employer may be required to provide. For example, if the employee has a baby, or the employee or his or her family member has a serious illness, the employee may be entitled to up to twelve weeks of unpaid leave per year under the Family and Medical Leave Act (FMLA). A serious health condition is an illness or injury requiring inpatient medical treatment or ongoing outpatient treatment by a health care provider, or a chronic medical condition.
According to the United States Department of Labor:
The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.
FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.
FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:
- for the birth and care of the newborn child of an employee;
- for placement with the employee of a child for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- to take medical leave when the employee is unable to work because of a serious health condition.
Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.
Time taken off work due to pregnancy complications can be counted against the 12 weeks of family and medical leave.
Medical leave may also be provided through an accommodation for a qualifying disability under the Americans with Disabilities Act (ADA). The ADA does not specify whether or what type of leave must be given to an employee who is disabled by an illness or injury, but courts have held that an employer may be required to provide leave beyond sick leave or personal leave if such leave would be a reasonable accommodation of a disability, as long as the leave is not unduly burdensome to an employer. Whether or not an accommodation is reasonable depends on the type of employer, as well as the condition of the employee.
How Much Time Does an Employee Have to Pursue a Claim Against an Employer?
Typically, if an employee wishes to pursue a discrimination claim in Nevada you must file with either the Nevada Equal Rights Commission, or the federal Equal Employment Opportunity Commission. You only need to file with one entity as they perform the same function. A claim with the NERC must be filed within 180 days of the discriminatory conduct, while a claim with the EEOC must be filed within 300 days. Upon completion of an EEOC or NERC investigation, typically the claimant will receive a Notice of Rights letter, which requires that a lawsuit be filed within 90 days of the conclusion of the investigation done by the EEOC or NERC.