Havre Job Service Employers'
Committee Employer Resource Guide
|
Havre Job Service Employers'
Committee Employer Resource Guide
|
Montana’s Discrimination LawsHuman Rights Bureau Employment Relations Division Department of Labor & Industry 1-800-542-0807 IMPORTANT: Anyone who hires one or more persons is subject to the Montana
Human Rights Act. These laws make it unlawful to discriminate in: ü Credit ü Education ü Employment ü Financing ü Housing ü State and Local Governmental Services and Employment ü Insurance (sex and marital status only) ü Public Accommodations because of: ü Age ü Familial Status (housing only) ü Marital Status ü National Origin ü Physical or Mental Disability ü Political Beliefs or Ideas (governmental services and employment only) ü Race/Color ü Religion/Creed ü Sex (including pregnancy, maternity and sexual harassment) These laws also make it unlawful to retaliate against a person for opposing
unlawful discriminatory practices or for participating in a human rights
proceeding. A formal complaint must be filed within 180 days of the alleged
discriminatory action. A. Phase One - The Human Rights Bureau ü Provides technical assistance concerning discrimination law; ü Accepts discrimination complaints; ü Attempts resolution of each case; ü Conducts impartial investigations and issues determinations on merits of the case; ü Attempts conciliation of complaints when preponderance of the evidence supports that discrimination has occurred. B. Phase Two - The Hearing Bureau ü Conducts a formal or informal public hearing when conciliation is not possible; ü Issues a decision on the case; ü Orders any reasonable measure to correct discriminatory practices and correct harm to persons discriminated against. C. Phase Three - The Human Rights Commission ü Hears appeals from decisions of the hearings examiner; ü Hears objections to decisions of the Human Right Bureau to dismiss a complaint. What is Illegal Discrimination? Under the Montana Human Rights Act (MHRA) the practices (if based on one or more of the above classes) are illegal. A. Employers: to discharge, to refuse to hire or to discriminate against a person with respect to compensation or other privileges of employment, or to deny a reasonable maternity leave or refuse to reinstate an employee following the leave. B. Labor Organizations: to deny membership or otherwise discriminate against a person or member. C. Employment Agencies: to fail or refuse to refer for employment. It is also illegal to retaliate against a person who has filed a complaint, participated in the investigation, or opposed discriminatory practices. Rights
of Persons With Disabilities in Employment
The Montana Human Rights Act and the Americans with Disabilities Act (ADA) prohibit discrimination in employment to an applicant or employee because they have a physical or mental disability. An employer may have additional obligations under the federal Family Medical
Leave Act. For information regarding this law, contact the U. S. Department of
Labor at 801-524-5706. EMPLOYMENT RIGHTS Qualified persons with physical and mental disabilities: ü May not be refused an application, interview or employment because of their disability; ü May not be terminated or discharged because of their disability; ü Have the right to a reasonable accommodation, which would allow them to perform the essential functions of their position. WHO IS COVERED? To be protected under Montana law and the ADA, an applicant or employee with a disability must: ü Have a physical or mental impairment that substantially limits one or more major life activities; ü Have a record of such an impairment; ü Be regarded as having such an impairment. The applicant must also: ü Be able to perform the essential function of the position with or without a reasonable accommodation. REQUESTS FOR REASONABLE ACCOMMODATION Whether or not a suggested accommodation is “reasonable” will depend on factors such as cost, availability, necessity and whether a less expensive or more convenient accommodation is available. The employer is not required to provide the accommodation suggested by the employee to perform the essential functions of the job. An accommodation is not reasonable if it endangers any employee’s health or safety, a bona fide occupational exemption exists, or create an extraordinary financial hardship on the employer. Employers: ü Have an affirmative duty to sit down with the employee and discuss what, if any, accommodation is needed, if the employer knew or should have known the employee is disabled; and ü Have an affirmative duty to make a reasonable accommodation, required by a person with a disability, to perform the essential job functions. Employees: ü have a duty to notify the employer they need an accommodation and tell the employer what modifications are needed to perform the job. EXAMPLES OF ACCOMMODATION IN EMPLOYMENT ü Making all application processes accessible to persons with disabilities; ü Making existing facilities used by employees readily accessible to and usable by employees with disabilities; ü Restructuring the job; offering part-time or modified work schedules; ü Reassigning the employee to vacant positions that they are qualified to hold; ü Acquiring or modifying equipment or devices; adjusting or modifying examinations or training materials or policies as appropriate; ü Providing qualified readers or interpreters. Legal
Rights of Pregnant Employees
A. Nondiscrimination in Hiring - An employer may not refuse to hire an applicant because she is pregnant or plans to become pregnant. B. Continued Employment - An employer may not fire or discharge an employee because of her pregnancy. C. 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. D. No Mandatory Unreasonable Leave - An employer may not require an employee to take a mandatory maternity leave for an unreasonable length of time. E. 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. F. 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. G.
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? ü 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. ü 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. ü 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 childcare beyond the period of actual disability. If an employer permits the use of leave beyond the period of disability, however, it should allow childcare leave for both mothers and fathers. ü 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. ü
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 A. Know your company’s disability benefit policies and policies regarding sick, vacation and annual leave. B. 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 are prepared to grant a reasonable leave of absence in accordance with your policies are required by law. C. 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. D. Contact the Montana Human Rights Bureau if you have further questions. Sexual Harassment is Against the LawEmployee
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: ü Submission to the conduct is explicitly or implicitly made a term or condition of employment; ü Submission to, or rejection of, the conduct is used as the basis for an employment decision; ü The conduct has the effect of unreasonably interfering with work performance or creates an intimidating, hostile or offensive work environment. ü Sexual harassment also includes: ü Harassment directed toward a person because of gender; ü
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: ü Propositions or pressure to engage in sexual activity; ü Repeated body contact; ü Repeated sexual jokes, innuendoes or comments; ü Constant leering or staring; ü Inappropriate comments concerning appearance; ü Hiring or promoting a sex partner over more qualified persons; ü
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 impacts of sexual harassment are: ü Emotional stress and related illnesses ü Low self-esteem ü Low morale ü Absenteeism ü Declining productivity ü High turnover EMPLOYER LIABILITY Employers may be liable for monetary compensation and other forms of relief to employees who are victims of sexual harassment by: ü The owner or manager; ü Supervisors, whether or not the employer knew of the sexual harassment; ü Coworkers, when the employer knew or should have known of the sexual harassment and failed to take immediate corrective action; ü 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: ü 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; ü Provide training for all employees in sexual harassment prevention; ü Express strong disapproval of any sexual conduct in the workplace, including jokes and comments which may be offensive; ü Immediately investigate any report of sexual harassment; ü Take immediate corrective action upon determining that sexual harassment occurred; ü Inform employees of their right to report sexual harassment to the Montana Human Rights Bureau or the federal Equal Employment Opportunity Commission.
|
|
Send mail to havrejsc@mt.gov with
questions or comments about this web site.
|