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Effectively Managing Workplace Harassment Amidst a Growing Number of Claims

It is time. Time for companies to rethink their workplace harassment policies that are outdated and slow-paced. It is time for companies to evaluate their culture and ensure that it does not foster any type of harassment. Company culture allows repeat offenders to get away with harassment and at some point, just like the many companies in the news, they too will become a statistic in the growing number of workplace harassment claims. Companies should be teaming up with their employees and HR Departments to ensure a proactive stance on workplace harassment. Here are some ideas on how to accomplish that task.

First, let’s take a step back to better understand what harassment really is. There are many things that are understood as harassment that are not actually 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.

Companies should start their culture evaluation by reviewing their workplace harassment policy. The policy should include a general overview of the aforementioned terms. The company should ensure that the policy is not solely a “sexual harassment policy”, but a “sexual and other types of harassment” policy. Focusing on what is unacceptable behavior is always appropriate when formulating a policy like this, however, specifically stating what is unacceptable behavior is not always a best practice. Harassment may take many different forms; therefore, no list may capture all forms of harassment. It is also important for companies to include wording about retaliation that states the company’s no tolerance stance on prohibiting any sort of retaliation towards an employee who has come forward with a harassment claim. Lastly, companies should include in their policy how employees should report an incident of harassment, or retaliation. Employees may be scared or embarrassed to come forward. However, having a policy that states how the company will deal with the harassment claim will likely make things easier on the employee who is making the claim.

Open-door policies are key in companies when dealing with harassment, as any type of harassment can be an emotionally trying event. Companies want their employees to feel comfortable coming forward in the event of harassment. Confidentiality is often something that the employee reporting harassment is concerned about. While it is important to keep information confidential, it cannot always be completely confidential as the company may need to reveal some information or the identity of the potential harasser in order to fully investigate the claim. Always make sure to state in the company’s policy, pending the outcome of an investigation, that any employee who is responsible for any harassment, discrimination and/or retaliation is subject to disciplinary action, up to and including termination of employment.

After the company has a policy in place and they have informed employees, it is important to then conduct harassment training at least every two-years, if not more. While it may not be the law to conduct this training, it shows due diligence on the employer’s part. In light of the recent years’ claims of harassment, there has been talk about whether it would be necessary to implement mandatory harassment training for employers across the nation. Companies should ensure that they have a qualified representative conducting their anti-harassment training. Training should be a two-way conversation between the trainer and the employees attending the training. Harassment training should reiterate everything that is in the company’s policy so that employees better understand how to utilize the policy. The more educated a company’s employees are on harassment and the unwelcome behaviors that may be associated with it, the more likely the company culture is to be harassment-free.

Management level employees should also receive management-level harassment training as regularly as all other employees as they are tasked with upholding the policy on a daily basis, as well as accepting complaints from employees. In other words, managers need to know the policy backwards and forwards. Managers need to be able to identify when a claim of harassment has been made formally, informally, verbally, or in writing and treat those claims with equal seriousness. If a manager does not receive a complaint in writing, that is acceptable and they still need to conduct an investigation.  In addition, employees look to managers for advice and consultation and management employees need to be ready to counsel an employee on a potential harassment claim. After the complaint has been made, management-level employees, or HR professionals, should begin initial investigations immediately. Waiting to start a harassment, discrimination, or retaliation investigation may subject the company to large legal penalties.

Preventing harassment in the workplace is not only an employer’s legal obligation, it is a good business practice. Harassment in the workplace not only poses many risks for the employees, but to the company as well. The company could experience financial hardship, a damaged reputation, retention issues, and a major loss of productivity. If companies have a well written policy that is easily understood, clear lines of communication to report harassment spelled out within the policy, harassment training at least every two-years, and management that is willing to uphold a culture that does not tolerate harassment, then the company is on the right track to having a harassment-free workplace. Employees are an organization’s most valuable asset and it is the employer’s duty to promote a harassment-free environment.

For additional information on this topic, contact us at www.NewFocusHR.com .

Written by: Patrick McKenna, SHRM-CP

HR Coordinator

New Focus HR, LLC

12/5/2017

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