Harassment in the Workplace

Title VII is a federal law which seeks to address discrimination and harassment in workplaces. Title VII regulates employers with 15 or more employees. Title VII prohibits harassment of individuals based on the following protected characteristics: race, color, national origin, sex, religion, and some other factors.

What constitutes harassment?

For an employee to bring a harassment claim under Title VII, the employee must possess a protected characteristic as identified above, be subject to harassment, the harassment must be related to a protected characteristic as identified above, and the harassment must be severe enough that it resulted in a change in the terms or conditions of the employee’s employment or created a “hostile” work environment. Finally, there must be a basis for holding the employer liable.

A “hostile” work environment exists where harassment unreasonably interferes with the employee’s performance or creates an intimidating, hostile, or offensive environment for the employee. The conduct of the harasser must be severe and pervasive in order for an employee to establish a hostile work environment. The factors that courts analyze to determine if conduct amounts to a hostile work environment are the frequency of the conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating, and whether the conduct unreasonably interfered with the employee’s job performance. The factors are analyzed through a mixed objective and subjective approach. The conduct must be subjectively perceived by the employee and the conduct must be judged objectively under a reasonable person standard.

It is important to note that employees are not protected by Title VII against general rudeness, horseplay, or even workplace flirtation. Title VII is not a general civility code and is meant to protect employees against conduct that involves patterns or allegations of extensive, long lasting, unaddressed, and uninhibited threats or conduct.

 

How should employers handle harassment?

 To limit liability for harassment claims, employers should take reasonable care to prevent harassment through training and written policies, diligently investigate any claims of harassment, and correct any reported harassment or harassment about which the employer becomes aware. An employer can minimize liability for harassment committed by a supervisor if it implements and takes the above steps in a reasonable manner. It is also important to have written policies in place and to have the policies reviewed periodically by an attorney ensure that the policies comply with current law. If you are an employer that has a written policy it is recommended to have an employee sign and acknowledge receipt of the policy.

Employers become liable for non-supervisor harassment if they knew or should have known of the harassing conduct, but failed to take prompt remedial action.

Both instances of harassment, whether supervisory or non-supervisory, require that the employer quickly and reasonably respond to any allegations of harassment. Employers can limit their liability by taking corrective action that is immediate, appropriate, and reasonably likely to stop the harassment. Examples of actions to limit liability include, confronting and counseling the alleged harasser in a prompt manner, disciplining the alleged harasser if warranted, adjusting schedules or transferring the alleged harasser to end the alleged harassment, and by being committed to training and policies which prevent harassment.

If an allegation of harassment has been brought against you as an employer, contact an attorney immediately to protect your rights.

Is Your Minor Child Protected if Something Happens to You?

By Kevin R. Albaum

My wife and I had our first child in November of last year (Nina). Our first order of business, like many others, was to purchase more life insurance coverage. We thought that by purchasing more life insurance, Nina would be provided for financially and thus protected if we were to unexpectedly die. However, in order to adequately provide for and protect a minor child in the event of both parents dying, purchasing life insurance should be just the first piece of a puzzle.

Who Gets Custody of the Minor Child?
If both parents are incapacitated and/or deceased, under Florida law, any family member or other person interested in the welfare of the minor child can petition the local probate court to become the guardian of the person and guardian of the property for the minor child. This often leads to legal fights (with a minor child caught in the middle) between aunts, uncles, godparents, and grandparents regarding who the court will choose to raise the child and manage their inheritance until the minor child turns eighteen (18).
If avoiding that potential family feud is desired, parents can proactively name a preneed guardian for their minor child in either their last will and testament or in a declaration of preneed guardian document that is filed with the local clerk of court during the parent’s lifetime. Not only can parents name the preneed guardian but they can also expressly bar someone from ever becoming the guardian of the minor child. By naming a preneed guardian, if a guardianship case is ever initiated, a rebuttable presumption arises that the person nominated by the parents as the preneed guardian is entitled to serve as the guardian for the minor child.

Don’t Accidentally Give The Minor Their Inheritance at Eighteen 
Under Florida law, a minor child cannot have more than $15,000 (in most situations) unless those funds are held in a guardianship of the property. When a guardianship of the property is in existence, there are legal expenses, court oversight of the spending, and the funds are often required to be held in restricted depositories. Additionally, a guardianship of the property terminates when a minor child turns eighteen (18). This means the minor child receives their entire inheritance on her 18th birthday.

Many parents plan to avoid the expense of a guardianship of the property and/or want to protect their children from accessing large amounts of money at age eighteen (18). This can be accomplished by crafting a last will or revocable trust to have an additional testamentary trust built into it that would hold the minor child’s funds in trust for a longer period of time. The parents also name a trustee (individual, professional, trust company) to manage the funds and make distributions to the minor child. If assets are structured to enter a trust for a minor child, they will not be subject to guardianship. The trust can be set up to hold the funds well beyond the time the minor child reaches the age of majority and the trustee will not have to distribute the funds to the minor child until the age the parents desire. I often draft testamentary trusts that terminate at age 25, 30, or 35 to avoid an 18-year-old receiving their entire inheritance too young.

If you desire to name a preneed guardian or set up your estate plan to protect your minor child, it is recommended to discuss your options with an estate planning attorney to determine the best way to structure the estate plan to meet your specific goals.