Workplace Harassment: What it is and how to prevent it.
As one of the most common forms of employment discrimination, employers need to be aware of what constitutes workplace harassment, how it can be prevented and how to respond when it arises in the workplace. This resource kit will provide agencies with the information necessary to tackle this complex issue. What is workplace harassment? Workplace harassment is a form of employment discrimination. Harassment based upon race, color, physical or mental disability, religion, age, national origin or sex is prohibited under federal law. In addition, state laws prohibit harassment based on other protected classes including marital or familial status, sexual orientation, gender identity and transgender status, as well as known relationship or association with any members of a protected class. Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other gender-based verbal or physical conduct, where submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment insofar as:
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that individual (quid pro quo); or
- such conduct has the purpose or effect of interfering with an individual's performance or creating an intimidating, hostile or offensive environment.
"Quid pro quo" is Latin for "this for that" and occurs when an individual misuses his/her authority in the workplace. For example, quid pro quo harassment would include a supervisor telling a staff member that she will receive a raise if she puts on a slinky black dress and accompanies him to dinner.
A hostile work environment exists when an employee is subject to severe or pervasive discriminatory conduct because of sex/gender, which was/is unwelcome, and which alters the work conditions of the employee and creates an abusive environment. Conduct that may create a hostile work environment includes:
- repeated requests for dates;
- obscene or "dirty" remarks;
- sexually explicit or lewd jokes;
- sexual innuendo;
- physically explicit "compliments";
- offensive gestures;
- pornographic materials;
- obscene cartoons;
- hugging and kissing;
- talking about the sexual activities or desires of the alleged harasser, harassee or other person;
- sexual advances; and
- sexually oriented email messages, text messages, and social media posts.
It is important to recognize that workplace harassment includes other forms of harassment and is not limited to harassment based on sex/gender. Other forms of unlawful workplace harassment include harassment on the basis of race, color, national origin, religion, age, physical or mental disability or any other basis prohibited by applicable state law. This would include conduct similar to sexual harassment, such as:
- verbal conduct such as threats, epithets, derogatory comments or slurs;
- visual conduct such as derogatory posters, photographs, cartoons, drawings or gestures; and
- physical conduct such as assault, unwanted touching or blocking normal movement.
How do businesses avoid legal liability for workplace harassment? To defend against a claim of sexual or other forms of harassment, an employer must be able to demonstrate the following: First, the employer had an accessible and effective policy for reporting and resolving complaints of sexual harassment; and secondly, the employee unreasonably failed to take advantage of the employer's complaint procedures. To do this, an employer must be able to establish it exercised reasonable care to prevent unlawful harassment.
In other words, the employer must be able to show the following: It had a harassment complaint policy. Also, it distributed the policy to employees, posted it in the workplace, and/or took other steps to inform employees about the policy; trained managers, supervisors and, ideally, all employees on what constitutes workplace harassment and the available complaint procedure; and adhered to its policy.
In developing or revising a workplace harassment complaint policy, employers must consider the following issues. What type of conduct does the policy prohibit? Many employers make the mistake of limiting the conduct prohibited by their workplace harassment procedure to acts of sexual harassment. An effective policy should state the employer prohibits workplace harassment based on any protected characteristic, including sex, race, national origin, religion, age or disability. Moreover, the policy should describe and provide examples of the type of conduct prohibited, including verbal, visual and physical conduct.
What individuals are subject to the policy's provisions? Although employees obviously will be covered by the policy, employers also should include clients, customers, visitors and independent contractors as groups of individuals who are subject to the policy. The policy should require employees to report harassing acts by such individuals and, conversely, such individuals' complaints about an employee should be investigated.
Which individuals should the policy designate to receive an employee's harassment complaint? An effective harassment complaint procedure should designate several individuals to whom employees may bring complaints. This assures that no matter whom the harasser is, or with whom he/she is friends, the employee has someone to whom he/she can complain.
What happens once a complaint is made? The policy should generally describe the process the employer will follow upon receipt of a complaint. For example, the policy should state an investigation will commence as soon as possible, and will include interviews with the accused and any witnesses. In addition, the policy should provide that, if the investigation substantiates the alleged conduct, prompt remedial action will result, including, where warranted, discipline up to and including termination. The policy also should apprise employees that any retaliation for making a complaint or for participating in an investigation is strictly prohibited.
Once a policy is revised, adopted and reviewed by legal counsel, all employees need to see the policy, read the policy and understand the policy. Employers should incorporate their harassment complaint procedure into their employee handbook and consider distributing the policy to employees on an annual or semiannual basis. Employers should require employees to sign and date an acknowledgment or receipt of the document every time it is distributed. This acknowledgment should state clearly the employee understands he/she is required to read the policy and raise any questions. After drafting, finalizing and distributing the harassment complaint policy, an employer's task is not finished. The employer should make sure all new hires and all existing employees participate in workplace harassment training. In addition, the employer should train all managers and supervisors on their responsibilities and on the effective implementation of the procedure.
What does a business do when it receives a workplace harassment complaint? Employers must be able to demonstrate they consistently follow their workplace harassment complaint policy by promptly investigating allegations of workplace harassment, and taking appropriate remedial measures to resolve the discriminatory conduct. In doing so, the employer should respond to complaints of harassment as soon as possible by initiating an investigation. In conducting the investigation, the employer should generally follow these steps:
- take the complaint from the alleged victim;
- interview the accused;
- interview witnesses and potential witnesses, leaving no stone unturned;
- review relevant work records;
- determine appropriate remedial action; and
- communicate the outcome of the investigation to the complaining party.
At every stage of the investigation, the investigator should:
- maintain an open mind;
- reassure the victim and warn the alleged harasser and witnesses that reprisals will not be tolerated; and
- document each stage of the investigation, keeping in mind the possibility of discoverability in a lawsuit several years in the future.
Taking these steps will go a long way in protecting your business from potential legal liability for workplace harassment.
By John M. Bagyi, Esq., SPHR, SHRM-SCP