All companies should have policies and practices stating their commitment to providing a work environment that is free from all forms of discrimination and conduct that may be considered harassing, coercive, or disruptive, including sexual harassment. They should also include wording that actions, words, jokes, or comments based on an individual’s sex, race, color, national origin, age, religion, disability, or any other legally protected characteristic will not be tolerated.
Harassment is defined as unwelcome comments or behavior based on someone’s race, color, religion, sex, national origin, age, disability, or any other legally protected characteristics to include sexual harassment. The question that employees and employers should ask themselves is “Do the comments or behaviors continually interfere with the individual’s ability to work?” If the answer is “yes” then it may be harassment. Ideally victims of harassment should first ask the harasser to stop their behavior(s). In the event that they don’t stop then it should be reported to a manager, executive-level employee or HR Department. However, in the event that the victim does not feel comfortable asking the harasser to stop then it is up to management to ask the harasser to stop their harassing behavior(s).
Employers have an obligation to maintain a workplace free of harassing conduct and to correct the conduct of employees, visitors, customers, vendors, and others who may interface with the business. Managers and supervisors have the obligation to be alert to harassing conduct, stop such conduct, not engage in such conduct and investigate complaints immediately. The most prominent types of harassment include sexual harassment and other types of harassment aimed at one of the protected classes, e.g. race, color, religion, sex, etc.
There are two types of sexual harassment.
1.) Quid pro quo which in Latin means this for that. This occurs when one employee is seeking exchange of sexual activity for favorable employment actions. If a supervisor displays this conduct the employer may be strictly liable without defense. Examples include: suggesting/granting a wage increase for accepting sexual overtures, suggesting/granting favorable or unfavorable work schedule for accepting/rejecting a sexual advance; and hiring/refusing to hire/fire an employee because of acceptance/refusal of sexual conduct or a date.
2.) The creation of a hostile environment. This is sexual conduct by anyone in the workplace that impairs an employee’s ability to perform work. Examples include: frequent telling of sex jokes; frequent use of double meaning comments; sex magazines in the workplace; display of sexually suggestive pictures; leering, suggestive looks, graphic commentary about a person’s body or sexual prowess; use of sexually degrading comments; and hugging, kissing, pinching, grabbing, etc. in the workplace. In essence, the harasser is creating a hostile environment by their actions, behavior(s), etc.
Sexual harassment cases often involve consensual workplace relationships gone sour where one of the parties feels jilted. So, the best case scenario would be to make sure that all sexual relationships involving employees in the same workplace be documented as such and employees in direct reporting relationships should not be able to date or be married. Such prevention will help to decrease a company’s liability when it comes to a relationship going bad. Remember too that there are no longer gender biases when it comes to sexual harassment. It occurs between males and females, females and males, males and males and females and females.
What are other types of harassment? Other types of harassment include all forms of discrimination and conduct that may be considered harassing, coercive, or disruptive, as they relate to an individual’s sex, race, color, national origin, age, religion, disability, or any other legally protected characteristic. Examples include; racial or ethnic slurs, jokes or symbols; age-related comments or jokes; disability-related comments or jokes; and comments or jokes related to any of the other legally protected characteristics.
What is the difference between a perception versus intent? In cases of harassment, our court system places more weight on the victim’s perception of the harassment than on the offender’s intention. In court cases where the behavior in question is subtle or falls into a gray area, the court system uses the “reasonable person” standard. Would a “reasonable person” interpret this behavior as harassment? If the answer is “yes” then it may be defined as harassment. Third party harassment occurs when a third party is uncomfortable, even when the third party was not directly targeted, and even when the other people involved are comfortable with the behavior. Third party claims have been on the rise in most recent years and again perception of the third party overrules the intent of those who may be the targets of the behavior(s).
Remember under the definition of harassment, it is conduct that is “unwelcome,” so conduct that is “welcomed” by an employee is not unlawful. However, in most situations, it would be very difficult to prove that the employee welcomed the harassing conduct. A company’s liability extends to conduct directed at employees outside of the workplace as well. Examples include: training sessions, company-sponsored parties and events; offsite seminars; meetings at potential or current client’s place of business; etc. Other areas of liability include emails, blogging and social networking sites. So, a company’s best defense is to eliminate sexual and other types of harassment from the workplace completely in order to help to reduce their liability.
Companies of all sizes should have a written policy and be conducting sexual and other unlawful harassment training in their workplaces. The policy should include information on how employees report incidents of harassment. Employers should be aware that whether the employee makes a formal written complaint or an informal verbal complaint that each needs to be treated with the same level of serious. Employers may not require employees to file written complaints. Some states require employee training on recognizing and preventing harassment. Other states don’t require it. If your state does not require such training, not providing it could prove to be costly resulting in huge litigation expenses. Whether the training is required or not, it is good practice to conduct it for all employees at a minimum of at least every other year.
Retaliation against an individual who believed a practice to be illegal and it was determined to actually be legal is against the law. Employers may not retaliate. The protection reaches to applicants, employees and former employees.
So, bottom line is that behaving appropriately all of the time and avoiding the appearance of bad behavior is critical. The appearance of inappropriate behavior may subject a company, harasser and victim to a damaged reputation, discipline or termination of employment and financial hardship, to name a few. Remember that there is no perfect work environment and that abiding by the four C’s of avoidance is essential. 1.) Communicate like you are at work and not at play all of the time. 2.) Be courteous to everyone. 3.) Use common sense in every action. 4.) Cooperate with others. By following these guidelines everyone will hopefully be working in an environment that is free of unlawful discrimination, harassment and retaliation.
For additional information and/or training on sexual and other unlawful harassment, please contact New Focus HR.
Written By: Kristen Shingleton, M.B.A., CCP
President, New Focus HR LLC