What is your organization’s obligation when it comes to maintaining a workplace free of harassing conduct? What are your managers and supervisors obligations when it comes to harassing conduct in the workplace? These are questions that most employers are not able to answer when asked. So, hopefully, this article will assist both organizations and their managers and supervisors to be able to understand what is expected of all parties when it comes to harassment in the workplace.
First of all organizations, both for profit and not-for-profit, and all municipal government employers are required by law to correct the inappropriate conduct of employees, clients, customers, residents, visitors, vendors, repair personnel, and others who may interface with their business. This may mean working with the harasser’s organization in order to have the inappropriate conduct stopped. It may also mean confronting a client, customer or resident to ask them to stop their offensive behaviors. Whatever the situation, if employee’s in your organization are being targeted it is management’s responsibility to make sure that the offensive conduct stops.
Secondly, managers and supervisors have an obligation to be alert to harassing conduct, stop such conduct, not engage in such conduct and investigate all reports of harassing conduct immediately. Managers and supervisors should be concerned as a growing number of lawsuits are naming them and they may be held personally liable under state law tort claims. Thus, they may land in the middle of a nasty lawsuit as a witness, defendant, or both.
So what is the definition of harassment? Harassment is unwelcomed comments or behaviors that are based upon someone’s race, color, religion, sex (to include pregnancy, gender identity, and sexual orientation), national origin, age (40 and older), disability, genetic information as referenced in the Genetic Information Nondiscrimination Act (GINA), military service veteran status, or any other characteristic protected by federal, state and local laws. The question that one has to ask himself or herself is, “Does it continually interfere with my ability to do my work?” If the answer is “yes”, then it may be harassment. Examples include racial or ethnic slurs, jokes, or symbols, age-related comments or jokes, disability-related comments, or any other comment, action, joke, etc. related to any of the protected classes as stated above.
Harassment may also come in the form of sexual harassment. There are two types of sexual harassment. The first is quid pro quo, which in Latin means, this for that. Quid pro quo is seeking exchange of sexual activity for favorable employment actions. Examples include suggesting or granting a wage increase for accepting sexual overtures, or suggesting or granting a favorable work schedule for accepting sexual advances, to name a few. If a manager or supervisor displays this type of conduct the employer is strictly liable without defense. The second type of sexual harassment is creating a hostile environment. A hostile environment is conduct that is of a sexual nature by anyone in the workplace that impairs an employee’s ability to perform their work. Examples include frequent telling of sex jokes, sex magazines in the workplace, inappropriate touching of others, use of sexually degrading comments, leering and suggestive looks or graphic commentary about a person’s body or sexual prowess, to name a few.
Conduct in the workplace that is welcomed by employees is not unlawful. However, it is very difficult to prove that the employee welcomed the harassing or sexual conduct. In cases of harassment, our court system places more weight on the victim’s perception of the harassment than on the offender’s intent. In court cases where the behavior in question is subtle or falls into a gray area, the court system uses the “reasonable person” standard. They ask the question, “Would a reasonable person interpret this behavior as harassment?”, and if the answer is “yes” then it is deemed to be harassment. So, the best defense for any organization is to have a zero tolerance policy and to eliminate it completely from the work environment.
Employers should conduct anti-harassment training at a minimum of every two years for current employees and at every new hire orientation and should have a solid written policy in their employee handbook preventing harassment, discrimination and retaliation in their workplace. The policy should include the definitions of harassment and steps for employees to follow when filing a complaint. Remember, employers may not require employees to put their complaints in writing. Whether the complaint is written or verbal, formal or informal, it must be treated with equal seriousness on behalf of the employer. Investigations must start immediately and may not be put off. Waiting to start an investigation on Monday when the conduct was reported on Friday afternoon may be considered too long in some court situations.
So, while there is no perfect environment, employers should encourage employees to behave appropriately at all times and avoid the appearance of bad behavior in the workplace. The message should be conveyed that inappropriate behavior may subject the organization and the employee to a damaged reputation, discipline or termination, and financial hardship. Harassment claims in general lead to a substantial liability for both the organization and the individuals involved.
For additional information on the different types of harassment and how to prevent it in your workplace, please contact us at www.newfocushr.com.
Written by: Kristen Deutsch, M.B.A., CCP