Unlawful Harassment: What HR Professionals Need To Know
Employees should be able to work without being impaired by unlawful discrimination, including discriminatory harassment. Victims of unlawful harassment should not have to walk away from their jobs. Your organization should never have to pay a dime because of sexual harassment or any other type of unlawful harassment because it will not tolerate any unlawful harassment in the workplace. And you will likely be blamed by your boss if any of this isn't true at your organization!
Many HR professionals believe it is too difficult to figure out whether conduct is sexual harassment. This is not true in 99% of the cases. In nearly every instance, you will be able to identify sexual harassment by remembering that it is unwelcome conduct of a sexual nature. You can review the EEOC's Facts About Sexual Harassment for a more thorough definition. You can also always call your employment lawyer. However, if it gets to that stage, you probably already know what your lawyer will say.
When confronted with questionable conduct at work, another source to consult may be your mother, sister, daughter or niece (or father, brother, son or nephew). If you are embarrassed to even ask whether some act is sexual harassment, then it probably is. If you ask, and your loved-one's first reaction is a shaking of the head or a moan, the questionable conduct can't be tolerated.
THE COST OF SEXUAL HARASSMENT
The cost of sexual harassment in the workplace is astronomical. Legal fees, settlement costs and jury verdicts are just the tip of the iceberg. And that's some tip. In two years alone, EEOC administrative settlements (not including court filed litigation) topped $83 million.
What's often overlooked is that victims of sexual harassment also cost your organization in terms of productivity, morale, turnover, etc. There is a misconception that most victims of sexual harassment won't tolerate the abuse and will make it stop or sue. This is not true. The vast majority of victims of sexual harassment do not complain about it. The problem festers and usually causes a host of other problems. They will likely become your problems.
WHEN MAY AN EMPLOYER BE HELD LIABLE?
If harassment is by a supervisor, the employer is automatically liable. Why? The United States Supreme Court proclaimed in Burlington Industries v. Ellerth and Faragher v. Boca Raton that the employer is automatically liable because the employer is responsible for preventing and/or stopping the harassment. How? By acting reasonably whenever there is a complaint of sexual harassment. For example, in a sexually hostile work environment case, the employer has an affirmative defense if it acts reasonably, by making its anti-harassment policy clear and the complaint procedure effective and the employee acts unreasonably - usually by not stepping forward to complain pursuant to policy. Organizations lose the affirmative defense in an adverse employment action case such as when an employee is fired, demoted, etc.
What about harassment by non-supervisors or outsiders? If the employer knew or should have known about the harassment, and fails to take immediate corrective action, the employer is on the hook. Remember, supervisors are the eyes and ears of your organization.
PUNITIVE DAMAGES PROTECTION
In Kolstadt v. American Dental Association, decided in 1999, the United States Supreme Court encourages employers to engage in preventive measures to prevent unlawful harassment. The Court gives employers punitive damages protection from "discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's 'good-faith efforts to comply with Title VII.'"
The EEOC issued its Enforcement Guidance: Vicarious Employer Liability For Unlawful Harassment By Supervisors in June, 1999. http://www.eeoc.gov/policy/docs/harassment.html. The EEOC Guidance should be carefully reviewed. Some highlights appear below:
- Employers should take preventive measures to prohibit all forms of unlawful harassment, not just sexual harassment.
- Employers should communicate their anti-harassment policy and complaint procedure to all employees periodically.
- If an employee is accused of sexual harassment and an investigation is inconclusive, the employer should still train and monitor the alleged harassor.
- Employers should consider the following when taking immediate and appropriate corrective action to ensure that harassment does not recur:
- Training; and,
Employers should train supervisors and managers about harassment. Training should cover the organization's anti-harassment policy and complaint procedure. This training should provide examples of prohibited harassment, address the seriousness of the policy, address the responsibilities of supervisors and managers and discuss the prohibition against retaliation.
Your organization needs an anti-harassment policy. Encourage workers to complain internally, and work with them to resolve the problem. Their problem is your problem. If you don't take this approach, you are inviting your workers to search the Yellow Pages - under Labor Lawyer.
The policy should identify prohibited conduct, express your organization's strong disapproval of harassment and/or zero tolerance commitment. It should communicate an effective complaint procedure, state that all claims will be investigated, and address discipline and retaliation. It doesn't have to be long or fancy. And no legalese!
Discipline all violators! A policy with no teeth is ineffective. If a supervisor engages in sexual harassment, or witnesses it and does not report it - which should also be a violation of the policy, discipline. Discharge is not the only form of discipline that will work. Consider demotions, reduced bonuses, warnings, etc. but remember, if you only give out "slaps on the wrist", your policy loses its credibility. Violations should be mentioned in evaluations as well. Establish a culture where your supervisors know your commitment to enforce the organization's anti-harassment policy is serious.
Anyone responsible for retaliating against an alleged sexual harassment victim must be disciplined as well. If someone steps forward and complains, make sure that the alleged victim is not disciplined or evaluated unfairly. Don't be afraid of this employee. Communicate! Ask the employee if he or she has been treated unfairly in any manner after complaining. Document the question and the answer. Follow-up if there is a problem. Many organizations are able to successfully defend a sexual harassment claim, and proceed to lose a claim of unlawful retaliation. Don't let that happen to your organization.
DISTRIBUTING THE POLICY
You may avoid liability by offering victims of unlawful harassment an opportunity to step forward, use your anti-harassment policy to accomplish this. You need to be able to prove that all employees are familiar with your anti-harassment policy. This should be done with signed receipts. Increasingly, organizations will collect computer-based generated acknowledgments from employees. Distribution of your policy and such acknowledgments should be collected on a periodic basis. Employees may not be expected to remember an anti-harassment policy that they received in a handbook years before. Posting the policy on a bulletin board or on your intranet is also a good idea.
THE COMPLAINT AND INVESTIGATION
Every organization must encourage employees to step forward to report discriminatory harassment. There are two ways to handle the complaint reporting process. An increasing number of employers are outsourcing this step to harassment hotlines. Other organizations handle this internally. Others combine both solutions. If you are handling complaints internally, victims should be able to complain to members of both sexes. The reporting process must be easy, effective and non-intimidating.
Investigations of harassment complaints are increasingly being placed under scrutiny in litigation. Think about it. If during litigation, an employer's defense is that following a complaint, it investigated and did the right thing, the method of investigation itself will likely be placed under a microscope in front of a judge or jury. If you are not comfortable investigating or if you are not sure that your investigation process may not withstand such scrutiny, get help.
If an alleged victim steps forward to complain and there is no follow-up to stop the harassment or if the complainer becomes the victim of retaliation, your whole preventive strategy goes down the tubes. Your organization will become a sitting duck for plaintiff employment lawyers. Schedule, on a periodic basis, meetings with the alleged victim and the alleged victim's supervisor. Keep asking the alleged victim if there are any problems. Show that you are concerned. Make sure that the alleged victim is not singled out for discipline or unwarranted evaluations. Make sure your supervisors are trained to document with specific examples and objective criteria.
Your supervisors are the key to preventing discriminatory harassment. If a supervisor knows or should have known about discriminatory harassment and your organization fails to take action, your organization will likely be automatically liable. Supervisors are your first and best line of defense in preventing sexual harassment as well as other forms of unlawful discrimination.
While lawyers can spend careers squabbling over the definition of sexual harassment, the vast majority of workplace incidents are clear cut. Supervisors do not need to enroll in an employment law class in a law school to understand what is inappropriate in the workplace. Supervisors, however, must be trained to identify sexual harassment and initiate corrective measures. They must become sensitive to the issue of sexual harassment and not engage in unwelcome acts of a sexual nature. Train supervisors on taking responsibility for enforcement of your anti-harassment policy, anticipating problems, documenting and communicating - especially on listening and follow-up.
An increasing number of organizations are moving towards computer-based training. Many educational theorists believe computer-based training results in a higher learning curve. This type of training is usually more cost effective. Further, this type of training can be easily recorded allowing organizations to prove that training was completed, if training should become an issue in future sexual harassment litigation. Some organizations use computer-based training in conjunction with live training.
Some employers seek to test supervisors' knowledge about sexual harassment following training and record those results. Since those results will likely be discoverable in a lawsuit, such evidence could be problematic. For example, what if remedial training is given to supervisors who get five errors but not four errors and the supervisor who got four errors is accused of sexual harassment? Rather than be put in such a predicament, periodic training and proof that supervisors completed a well respected training course is the better solution.
TRAINING ALL EMPLOYEES
All employees should be trained about your policy and complaint resolution procedure. This can be as simple as providing employees with a copy of the policy, discussing the complaint resolution procedure with them and documenting that the employees received the policy and were told about how complaints must be made. Examples of prohibited conduct can also be addressed. Training programs that teach mutual respect are also highly recommended. Call 888-HR-TRAIN to discuss HRTrain's video and on-line courses entitled:
- What Everyone Needs To Know About Sexual Harassment
What you don't know about employees' attitudes towards your organization can only hurt you. There are many reasons to conduct periodic self-audits to gather information about worker attitudes. The results of such audits can be instrumental in finding solutions that can drastically increase both morale and productivity. Don't forget to raise the issue of sexual harassment and other forms of discrimination in your audits. Constant communication with your workforce is crucial. Learn what is going on. And listen for signs of sexual harassment such as discomfort about certain types of humor or complaints about the basis for employment decisions. You may be able to stop a problem before it gets out of hand.
If you learn about sexual harassment, either from a complaint, a supervisor, a self-audit or your observations, be proactive. Don't be afraid to talk with the alleged victim. Ask questions! After the organization has taken action or decided not to take action, communicate the reasons with the alleged victim. Periodically follow-up. Checking back with the employee to see if they have other complaints every few months or so can go a long way towards reducing your legal bills by giving you an opportunity to learn about problems and take corrective action before a problem gets out of control.
No organization can afford sexual harassment or other forms of unlawful harassment in the workplace. In terms of human resources issues, the costs are staggering. When coupled with legal exposure, it is even higher. The mere publicity from a sexual harassment claim can be fatal to your organization and your career.
Preventive measures are relatively inexpensive. By freeing employees to work without the burden of being harassed, you can make your department into a profit center. Try measuring the increased productivity, decreased turnover, increased attendance and decreased legal fees after implementing a zero tolerance sexual harassment policy, and take credit for it!
Since 1996, HRTrain has been the leader in discriminatory harassment prevention online training.
This article provides some general guidance and may not be viewed as legal advice.
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