Is it Illegal to Make an Offensive Comment?
The answer will depend on all the facts and circumstances involved, such as whether the comment was made by an employer and whether the comment was based on race, color, national origin, religion, sex, age, disability, or status as a Vietnam-era veteran . A person who is subject to hostile environment sexual harassment in the workplace because the employer, supervisor, or co-worker does or says things that make the victim feel uncomfortable because of his or her sex may have a right to sue the employer. It is not necessary to show a demand for an exchange of sex for a job benefit, the creation of an "uncomfortable environment" is sufficient under the law.
In order to prevail in a lawsuit, the conduct complained of must be shown to have been offensive to the plaintiff. Jokes, pictures, touching, leering, unwanted requests for a date have all been found by courts to be sexual harassment. Sexual harassment in the workplace can be between people of the same sex. Sexual harassment in the workplace can be a woman harassing a man. A hostile environment in the workplace may also be created by discriminationary behavior based on race, ethnicity, or national origin. The discrimination or harassment in the workplace must be severe and pervasive, rather than a mere idle comment, even if, offensive. Also it must be shown that management is aware of the harassment or discrimination and has failed to take action against it.
Victims of discrimination in the workplace or sexual harassment in the workplace can recover for their lost wages, future lost wages, emotional distress, punitive damages, and attorneys fees
Discrimination on the basis of race, color, national origin, religion, sex, age, disability, or status as a Vietnam-era veteran is prohibited by titles VI and VII of the Civil Rights Act of 1964, title IX of the Educational Amendments of 1972, sections 503 and 504 of the Rehabilitation Act of 1973, the Vietnam Era Veterans' Readjustment Assistance Act of 1974, the Pregnancy Act of 1975, the Age Discrimination Act of 1975, the Age Discrimination in Employment Act Amendments of 1978, the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, and other federal and state statutes and regulations. This policy applies to all programs, services, and facilities, and includes, but is not limited to, applications, admissions, access to programs and services, and employment.
Title VII of the Civil Rights Act of 1964 prohibits discrimination in broad areas of the employment relationship. It applies to most employers engaged in interstate commerce with more than 15 employees, labor organizations, and employment agencies. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq., prohibits discrimination in employment on the basis of race, sex, national origin and religion. It also is unlawful under the Act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII or for filing a discrimination charge or for testifying or assisting or participating in an investigation, proceeding, or hearing under Title VII. Sex includes pregnancy, childbirth or related medical conditions. It makes it illegal for employers to discriminate in hiring, discharging, compensation, or terms, conditions, and privileges of employment. Employment agencies may not discriminate when hiring or referring applicants. Labor organizations are also prohibited from basing membership or union classifications on race, color, religion, sex, or national origin.
The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating on the basis of age. The prohibited practices are nearly identical to those outlined in Title VII. An employee is protected from discrimination based on age if he or she is over 40. The ADEA contains explicit guidelines for benefit, pension and retirement plans.
It is possible for an employee to file a discrimination complaint with the EEOC. Anyone who feels that he or she has suffered workplace discrimination because of his or her race, age, physical disability, religion, sex, or national origin is eligible to file a complaint with the EEOC. Complaints or charges are generally filed at an EEOC office by the aggrieved party or by his or her designated agent. All charges must be filed in writing, preferably but not necessarily on the appropriate EEOC form, within 180 days of the occurrence of the act that is the reason the complaint is being filed. Complaints may be filed at any one of 50 district, area, local, and field EEOC offices throughout the United States.
After a complaint is filed, the EEOC then undertakes an investigation of the charge. If the investigation shows reasonable cause to believe that discrimination occurred, the Commission launches conciliation efforts. The reaching of an agreement between the two parties signals closure of the case. If such an agreement cannot be reached, the EEOC has the option of filing suit in court or the aggrieved party may file suit on his or her own. If no violation of Title VII is found, the EEOC removes itself from the case, though the party charging discrimination is still free to file suit in court within a specified time.
The elements of proof will vary depending on the exact factual circumstances. Generally, there are two types of proof of discrimination. The first is direct evidence of the employer’s discriminatory intent. This type of evidence is very rare, but usually takes the form of oral statements that the prospective employee is "too old" or "there is too much gray hair in this company." Once the prospective employee has shown direct evidence of discrimination, the burden of proof shifts to the employer to prove that it would have taken the adverse action even without the discriminatory intent. In most cases, however, the prospective employee does not have direct evidence and must rely on indirect, or circumstantial, evidence. This typically involves proof that a pattern of discrimination exists through the use of statistical analysis, or providing circumstantial evidence that discrimination occurred.