Employment practices liability (EPL) coverage, included in Directors and Officers coverage, deals with hiring, firing and everyday workplace interactions. Employment practices liability claims alleging workplace discrimination or sexual harassment are increasingly common.

Members and guests may file an employment practices liability claim against the Post if they feel they have been discriminated against, sexually harassed or wrongfully expelled/terminated from the organization. Employment practices liability policies provide coverage for these types of claims involving members and guests, treating them the same as paid employees.

To protect your Post, it’s important to understand different types of employment practices liability claims. Here is a deeper dive into four common employment practices liability claims and how to protect against them.

Hostile Work Environment

A hostile work environment claim can be complex and involves behavior that discriminates against a group of people based on their race, religion, sex, age, disability and more.

A hostile work environment creates a workplace environment that the average person would find intimidating, hostile or even abusive. This behavior may involve:

  • Offensive jokes
  • Sexual language
  • Sexually suggestive pictures or objects
  • Name-calling, insults or slurs
  • Mockery, ridicule or intimidation
  • Physical touching, assault or threats
  • Interference with the performance of work

Victims can include not only the targeted individual but others whose work suffers because of the behavior. The person causing a hostile work environment may be a supervisor, coworker or non-employee, such as a vendor or regular customer.

A hostile work environment is more than having an annoying coworker or even experiencing isolated incidents of a prohibited behavior. For a hostile work environment claim to apply, the behavior must be:

  • Severe, persistent and pervasive
  • Disruptive to performing work duties
  • Known to the employer but not remedied

Steps Posts can take to prevent claims of a hostile work environment:

  • Have policies and procedures in place for worker conduct and behavior.
  • Train supervisors and employees on proper prevention and remedies.
  • Take appropriate corrective action once a discriminatory situation becomes known.
  • Avoid any retaliation against the workers who reported or witnessed the behavior.

Sexual Harassment

While sexual harassment claims often involve a person in a position of authority over the victim, this is not always the case. These claims can result when employers or others:

  • Make inappropriate sexual comments toward an employee, member or guest.
  • Ask inappropriate sexual questions about their personal life.
  • Make unwanted sexual advances toward an employee, member or guest.
  • Request sexual favors from an employee, member or guest.

A claim of sexual harassment does not need to meet the same severe and pervasive standards as a hostile work environment claim. A claim can be made when management becomes aware of the issue but fails to take adequate steps to address and stop the behavior.

Steps Posts can take to prevent a claim of sexual harassment:

  • Develop and enforce safe workplace policies for all employees, members and guests.
  • Train employees and members on behavioral expectations.
  • Monitor operations to ensure a safe workplace.
  • Act quickly to remedy harassment that is reported or witnessed.
  • Avoid any retaliation against the harassment victim or witnesses.

Quid Pro Quo

Quid pro quo is a Latin phrase used to mean an exchange of one thing for another. A quid pro quo claim is a specific kind of prohibited workplace discrimination where a manager or supervisor offers employment or promotion to an employee in exchange for:

  • Sex
  • Sexual contact
  • Sexual favors

This is a form of sexual harassment limited to:

  • Persons in a position of authority with the power to hire, fire, promote or reassign the employee if they do not comply with unwanted sexual advances or refuse sexual favors.

Other employees and non-employees may contribute to the sexual harassment of an employee, but this would not fall under a quid pro quo claim.

Steps Posts can take to prevent a claim of quid pro quo:

  • Develop specific policies and procedures for managers and supervisors.
  • Train supervisors and employees on prevention and reporting.
  • Investigate all complaints and take appropriate action as needed.
  • Avoid any retaliation against the victim or witnesses of the harassment.

Protected Characteristics

Claims of discrimination for protected characteristics are another common type of employment practices liability claim. Federal equal employment opportunity laws prohibit employment discrimination based on several protected characteristics:

  • Race
  • Color
  • Religion
  • Sex (including pregnancy, sexual orientation or gender identity)
  • National Origin
  • Age (aged 40 or older)
  • Disability
  • Genetic information (including family medical history)

The protections apply to:

  • Job applicants during the hiring phase
  • Employees during their employment
  • Former employees after leaving employment

Posts can take steps to prevent protected characteristics claims at each stage of employment.

When hiring, avoid the appearance of any form of discrimination:

  • Develop documented employment procedures and job descriptions.
  • Plan for job postings, application screening and candidate interviews.
  • Review key employment law provisions including prohibited questions.
  • Avoid interview questions that are not directly related to the job.
  • Hire based on eligibility and qualifications.

During employment, protect yourself and your Post:

  • Create an employee handbook with all workplace policies and procedures.
  • Document everything in writing, including absences, conduct and performance.

When firing, follow your employment procedures:

  • Document performance and code of conduct violations.
  • Fire according to your documented policies.

Protect Your Post from Employment Practices Liability Claims

It’s important to remember that any employer can be sued by an employee over their employment practices. Fraternal organizations are particularly vulnerable, since legal judgements and settlements can be costly.

Claims for hostile work environment, sexual harassment, quid pro quo and protected characteristics can be minimized with the right steps. However, it’s possible to receive a claim even when you have done nothing wrong.

Employment Practices Liability coverage, included in Directors and Officers coverage, is a key part of protecting your Post. With Directors and Officers coverage from Lockton Affinity, your Post is protected from these and other employment practices liability claims.

Contact a Lockton Affinity representative at (800) 829-8390 or [email protected] to learn more and get Directors and Officers insurance for your Post and its leadership.