In the era of #MeToo, the subject of workplace harassment is a complicated one. It’s no longer enough to have an open door policy or a 1-800 number to anonymously report concerns. Companies must take deliberate measures in order to educate, train, and anticipate how workplace harassment might happen, how to conduct the employee investigation, and the different ways in which incidents might occur and how they should be handled.
Workplace harassment isn’t just sexual harassment. In fact, in the era of technology social media and electronic communication, workplace harassment isn’t limited to office behavior like bullying, snide comments, or cold stares. Behavior that creates a hostile work environment can impact employees that work remotely if the harassment takes the form of online trolling or abuse. In this post, we’ll define workplace harassment and explore how to handle violations in order to protect your employees as well as your company.
Defining Workplace Harassment
In the United States, Canada and in some European Union Member States, employers are responsible for providing their employees with a work environment that does not discriminate and is free of harassment. According to the United States Department of Labor, there are two basic types of unlawful harassment.
(1) Quid Pro Quo Harassment (“This for That”)
Quid pro quo harassment generally results in a tangible employment decision based upon the employee’s acceptance or rejection of unwelcome sexual advances or requests for sexual favors, but it can also result from unwelcome conduct that is of a religious nature. This kind of harassment is generally committed by someone who can effectively make or recommend formal employment decisions (such as termination, demotion, or denial of promotion) that will affect the victim.
- supervisor who fires or denies promotion to a subordinate for refusing to be sexually cooperative;
- supervisor requires a subordinate to participate in religious activities as a condition of employment;
- supervisor offers preferential treatment/promotion if subordinate sexually cooperates or joins supervisor’s religion.
(2) Hostile Work Environment Harassment
A hostile environment can result from the unwelcome conduct of supervisors, co-workers, customers, contractors, or anyone else with whom the victim interacts on the job, and the unwelcome conduct renders the workplace atmosphere intimidating, hostile, or offensive.
Examples of behaviors that may contribute to an unlawful hostile environment include:
- discussing sexual activities;
- telling off-color jokes concerning race, sex, disability, or other protected bases;
- unnecessary touching;
- commenting on physical attributes;
- displaying sexually suggestive or racially insensitive pictures;
- using demeaning or inappropriate terms or epithets;
- using indecent gestures;
- using crude language;
- sabotaging the victim’s work;
- engaging in hostile physical conduct.
When Harassing Conduct Violates the Law
First, unlawful harassing conduct must be unwelcome and based on the victim’s protected status. Second, the conduct must be: subjectively abusive to the person affected; and objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.
Whether an instance or a pattern of harassing conduct is severe or pervasive is determined on a case-by-case basis, with consideration paid to the following factors: the frequency of the unwelcome discriminatory conduct; the severity of the conduct; whether the conduct was physically threatening or humiliating, or a mere offensive utterance; whether the conduct unreasonably interfered with work performance; the effect on the employee’s psychological well-being; and whether the harasser was a superior within the organization.
Hostile work environment cases are often difficult to recognize, because the particular facts of each situation determine whether offensive conduct has crossed the line from “ordinary tribulations of the workplace, such as the sporadic use of abusive language… and occasional teasing” to unlawful harassment.
What You Can Do to Limit Harassing Conduct
The most effective way to limit harassing conduct is to treat it as misconduct, even if it does not rise to the level of harassment actionable under the law. The goal of any workplace policy is to eliminate harassment before it becomes severe and pervasive enough to violate the law. A well constructed and well-implemented plan within an organization may stop inappropriate conduct before it creates a problem for individual employees or the company. Below is a list of steps you can take right now to ensure your company is compliant with harassment laws, as well as making it easy for employees to report incidents without fear of retribution.
1) Make sure your policy is up to date and that all employees have reviewed it, acknowledged it (via document signature), and are aware of any updates or changes to the policy as soon as they occur. Update and reissue the policy statement every year, and provide training every year. Obtain a signed acknowledgment form from every attendee indicating she understands the company policy against harassment and retain signed acknowledgments in employment files stored in the human resources department.
2) Provide ongoing training for managers and employees. An effective presentation is made up of three pieces: a review of the basics, real world harassment scenarios and a chance for participants to interact and share their ideas. Even if you feel like your participants have of a good grasp on harassment basics, it’s important to build your presentation around familiar terms and concepts. Never forget to cover things like the definitions of quid pro quo, hostile work environment, retaliation and other well-known harassment terminology. For most supervisory employees this will be review. The key is to give them a chance to apply their knowledge.
3) Establish a variety of reporting channels, such as an anonymous 1-800 number, a form on your employee portal, or a generic email address like email@example.com that makes it easy and provides employees an opportunity to feel more comfortable to talk to HR about the harassment that is happening, whether it’s to them or someone they know in the workplace.
4) All complaints should be investigated thoroughly, providing a standardized process for the person filing the complaint to follow up, even if the complaint is made anonymously. Management must take prompt, remedial action to investigate and eliminate any harassing conduct. Note that several litigated harassment claims include allegations that an employer sat on a complaint without fully investigating it. All information should be maintained on a confidential basis to the greatest extent possible.
5) Investigation records should be kept and quarterly reviews should take place to determine if a pattern of behavior or harassment exists. From SHRM: “If an investigation results in a finding that this policy has been violated, the mandatory minimum discipline is a written reprimand. The discipline for very serious or repeat violations is termination of employment. Persons who violate this policy may also be subject to civil damages or criminal penalties.”
6) Don’t forget harassment outside of work. In the age of digital and social media, harassment can happen on social media platforms. The U.S. Equal Employment Opportunity Commission (EEOC) recommends that workplace anti-harassment policies incorporate dealing with social media. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. As a result, the EEOC found that “harassment should be in employers’ minds as they draft social media policies and, conversely, social media issues should be in employers’ minds as they draft anti-harassment policies.”
7) Use your background screening process to help spot possible offenders during the hiring process. While criminal history searches will identify known criminal offenses, there are also other ways to help uncover potential risk. Consider adding employment verifications, reference checks, professional credential checks and social media searches to your current background screening program.
Employment Verifications can help uncover whether the candidate has ever been released for harassment in the past. Reference checks provide you with subjective information about an applicant. If there have been problems with harassment in the past, it will likely continue. Should the candidate’s position require a license(s), then a check of the license(s) may identify previously identified violations and/or sanctions
In addition, Social Media searches can also help companies who are concerned with harassment and mitigating risk. A combination of artificial intelligence, machine learning, and human-based quality assurance automatically highlights red flags in your candidate’s social media activity which may reference aggressive or violent acts, bigotry, unlawful activity, illegal drugs, discriminatory or sexually explicit activity, or any “custom risk” you feel may have a negative impact.
Note that this post is intended to provide resources and information; it should not be construed as a legal document, nor has it been reviewed by legal counsel. Employers should review federal and state anti-harassment provisions before implementing any new anti-harassment policy.