Even though the Supreme Court of the United States brought harassment claims to the forefront with two significant 1998 decisions, it seems as though some individuals still don’t get how serious the issue actually is. In spite of numerous multi-million dollar judgments against employers and supervisors, harassment in the workplace continues. In fact, due to employees’ “over-use” of social media these days, the workplace is even more susceptible to harassing misconduct. And, of course, harassment is not just for “sex” anymore, but also includes harassment based upon other classifications such as age, race and even sexual orientation under some circumstances.
Employees are more aware of their rights than ever before and have an arsenal of laws at their disposal to foist significant liabilities on employers. So, even though you think you have the issue under control at your workplace, you may wish to consider revisiting these issues and consider some of these helpful suggestions. Remember, disgruntled employees, especially ex-employees, often strike back at employers through claims of harassment. While some employers have attempted to obtain insurance to cover these types of claims, many have found that the coverage is less than what they expected. Also, the punitive damages which usually represent the largest component of any judgment are not covered by the policy in most circumstances.
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age, disability or genetic information. Harassment becomes unlawful where the conduct is severe or pervasive and unwelcome. Harassment can arise not only between employees, but also can be caused by those non-employees having contact with your workforce. Yes, you must even take action to prevent harassment of your employees by outsiders who are working alongside your employees or visiting your facilities and jobs. Offensive conduct may include such things as offensive jokes, slurs, epithets, name calling, physical assault or threats, intimidation, ridicule, mockery, offensive objects or pictures and other such things.
If you do not have a sound harassment policy which addresses all types of actual harassment, you will have practically no defense to a harassment claim. Second, if you have not provided training to all of your employees in the recent past, your defenses may be limited as well. Of course, management training is a must. All supervisors need to be trained on what the law demands of them and how to avoid claims. They must also know how to promptly handle a complaint if one is received. Remember, in some states supervisors can be sued and held individually liable for harassment. Also, if the supervisor is the harasser, the law makes the employer strictly liable for the supervisor’s harassment under most circumstances. Your investigation procedures must be complete and effective. Following the investigation, prompt remedial action needs to be taken if harassment is found to exist. Documentation of the process must be carefully crafted to avoid admissions against interest but also must be used in order to show that training was imparted, claims procedures were published and claims were meaningfully considered and disposed of in an effective manner.
So take action now! Prevention is the best tool to stop harassment in the workplace. The actions you should take now include:
- Establishing and publishing a harassment policy which includes all types of harassment;
- Training on the topic;
- Effective maintenance of a complaint procedure;
- An investigation protocol; and
- Prompt, appropriate remedial action where warranted.
Your harassment policy must define unacceptable conduct, firmly state the company’s position, describe the consequences of inappropriate actions, suggest informal resolution, require a written report in the handwriting of the employee immediately upon an incident being reported, inform of the investigation process but not promise that the process will take any special approach, promise no retaliation and caution against false accusations being made by employees. Does your policy do all of these things?
When training your employees, documentation of the training is important. The components of the training must include, among other things, information about employees recognizing that what is generally acceptable in society in a non-employment setting may not be acceptable in the workplace. Employees must be taught that some individuals may be more sensitive than others and that it is a matter of perception. Demand that your employees fully understand the policy and know the methods for reporting claims and the need for promptly reporting such.
As society changes so do the laws related to harassment. Recently, a federal appellate court ruled that same-sex harassment is “because of sex” and is therefore actionable as harassment. In this case, an ironworker on a bridge maintenance crew was subjected to frequent verbal and physical acts of harassment because his fellow employees believed that he did not represent a “manly-man” stereotype and that he was not “manly enough.” He was ridiculed on the jobsite, called names and taunted. The court, in a departure from prior precedent, ruled that there was harassment based on a perceived lack of masculine behavior and that it was actionable under Title VII of the Civil Rights Act. The implication for employers is that this decision may transform Title VII from an anti-discrimination statute to a general workplace civility code inviting some claims that did not exist before. Because the law of harassment is ever changing, employers must periodically review their policies and training they utilize so as to ensure compliance with the law. Yes, some employees just don’t ever get it! So, you must take action now.
Bob Dunlevey of Dunlevey, Mahan & Furry is an OSBA Board Certified Labor and Employment Law Specialist and his firm represents employers in labor and employment matters throughout the United States. For more information, visit www.dmfdayton.com.