Sexual Harassment is Against the Law
Employees have a Right To Work in an Environment Free of Sexual Harassment
Sexual harassment includes unwelcome verbal or physical conduct of a sexual nature when:
- submission to the conduct is explicitly or implicitly made a term or condition of employment;
- submission to, or rejection of, the conduct is used as the basis for an employment decision;
- the conduct has the effect of unreasonably interfering with work performance or creates an intimidating, hostile or offensive work environment.
Sexual harassment also includes:
- harassment directed toward a person because of gender;
- a pattern of favoritism toward sexual partners.
Examples of Sexual Harassment
Sexual harassment is determined on a case-by-case basis. Acts which are offensive to one employee may not be offensive to another. However, in addition to sexual assault, the following acts may constitute sexual harassment:
- propositions or pressure to engage in sexual activity;
- repeated body contact;
- repeated sexual jokes, innuendoes or comments;
- constant leering or staring;
- inappropriate comments concerning appearance;
- hiring or promoting a sex partner over more qualified persons;
- harassment based upon gender in nontraditional employment.
Impact of Sexual Harassment
Women are not the only victims of sexual harassment. Men may also be harassed. Employees often do not report harassment out of ignorance of the law or fear of reprisal. Some of the impact of sexual harassment are:
- emotional stress and related illnesses
- low self-esteem
- low morale
- declining productivity
- high turnover
Employers may be liable for monetary compensation and other forms of relief to employees who are victims of sexual harassment by:
- the owner or manager;
- supervisors, whether or not the employer knew of the sexual harassment;
- coworkers, when the employer knew or should have known of the sexual harassment and failed to take immediate corrective action;
- non-employees in the workplace when the employer knew, or should have known of the sexual harassment and failed to take immediate corrective action.
What Employers Should Do
The best tool for eliminating sexual harassment is prevention. The following steps will aid in preventing sexual harassment:
- develop and post a written policy defining an prohibiting sexual harassment and providing an effective procedure for reporting sexual harassment and disciplining those who engage in it;
- provide training for all employees in sexual harassment prevention;
- express strong disapproval of any sexual conduct in the workplace, including jokes and comments which may be offensive;
- immediately investigate any report of sexual harassment;
- take immediate corrective action upon determining that sexual harassment occurred;
- inform employees of their right to report sexual harassment to the Montana Human Rights Bureau or the federal Equal Employment Opportunity Commission.
What Employees Should Do
If you are offended by sexual jokes, comments or other sexual or gender-based conduct in your workplace, immediately inform your supervisor. If your complaints are not resolved, you should take the following steps:
- report the sexual harassment to another supervisor or your employer;
- keep written records of the dates and facts of all sexual harassment and the names of witnesses;
- contact the Montana Human Rights Bureau.
Legal Rights of Pregnant Employees
If you are pregnant or have recently had a child and you believe an employer has denied your right to maternity leave or you believe an employer has otherwise discriminated against you, contact the Montana Human Rights Bureau. You must file your complaint within 180 days of the alleged violation.
Select a link below to view more specific information..
Rights of Pregnant Employees
What is Reasonable Maternity Leave?
Checklist for an Employer
A Pregnant Employee has the Following Rights:
Nondiscrimination in Hiring - An employer may not refuse to hire an applicant because she is pregnant or plans to become pregnant.
Continued Employment - An employer may not fire or discharge an employee because of her pregnancy.
Reasonable Maternity Leave - An employee is entitled to a reasonable leave of absence for the temporary disabilities associated with childbirth, delivery and related medical conditions. The employer may not place restrictions on the leave which would not apply to leaves of absence for any other valid medical reason.
No Mandatory Unreasonable Leave - An employer may not require an employee to take a mandatory maternity leave for an unreasonable length of time.
Use of Accrued Benefits and Leave Time - A pregnant employee is entitled to use any disability benefits, sick leave, vacation time, annual leave or compensatory time accrued pursuant to plans maintained by the employer for her maternity leave. If the employer maintains no such plans or benefits, the employee is entitled to maternity leave without pay.
Equal Treatment in Employee Benefit Plans - Disabilities as a result of pregnancy, childbirth or related medical condition are, for all job related medical conditions are, for all job-related purposes, temporary disabilities. An employer may not treat an employee disabled due to pregnancy less favorably than an employee with any other temporary disability under any health, medical temporary disability or sick leave plan maintained by the employer. All benefits provided to temporarily disabled employees pursuant to such a plan must be provided to pregnant employees.
Reinstatement after Maternity Leave - An employee who has signified her intent to return at the end of a reasonable leave of absence for maternity must be reinstated to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits. The law provides a limited exception to this rule for private employers when the employer's circumstances have changed so much that it is impossible or unreasonable to do so. For example, an employer who has gone out of business while the employee is on maternity leave would not be required to reinstate her.
What is Reasonable Maternity Leave?
Whether maternity leave is reasonable is determined case by case based upon the ability of the employee to perform her job. In the case of normal pregnancy and delivery, medical providers typically consider a reasonable leave to be six to eight weeks after delivery.
If the employee is unable to perform her job prior to delivery, or if there are complications such as illness or surgical delivery, necessary leave may be longer than normally required. If the employer and the employee cannot agree in establishing a reasonable period of time for the leave, the employer should rely on the judgment of the employee's physician or other medical provider who has actually examined the employee.
An employer and an employee may mutually agree to a longer period of leave, either compensated or uncompensated, than would otherwise be required by law. An employer is not required to provide maternity leave for child care beyond the period of actual disability. If an employer permits the use of leave beyond the period of disability, however, it should allow child care leave for both mothers and fathers.
As a condition of maternity leave, an employer may require the employee to provide medical verification that the employee is unable to perform her employment duties.
Leave for fathers and parents of adopted children are not required by state law (except for employees of the State of Montana) but may be required under federal law. An employer may, however, voluntarily provide for such leave.
If You Are an Employer
Know your company's disability benefit policies and policies regarding sick, vacation and annual leave.
Communicate with your pregnant employee about the anticipated need for maternity leave. Put into writing any agreements concerning the leave. Make sure the employee understands her obligations, including the obligation to return to work on a specified date and provide medical verification if required. Make sure the employee knows how to request an extension of her leave should complications arise. If an employee indicates her intent to voluntarily resign because of her pregnancy, obtain her resignation in writing after making sure she is aware that you a re prepared to grant a reasonable leave of absence in accordance with your policies are required by law.
Make Sure that any replacement employee understands that his or her employment is temporary, unless your employee resigns or you make other arrangement for reinstatement after the maternity leave. Except in extremely limited circumstances, you must reinstate the employee to her original position or an equivalent position following her maternity leave.
Contact the Montana Human Rights Bureau if you have further questions.