Employment Law

Workplace Harassment / Sexual Harassment

As workers spend more time at work and there are many more types of harassing conduct that can occur, managing harassment in the workplace has become increasingly important.  Harassment continues to be a large issue in the workplace, including but not limited to sexual harassment.  Harassment may be based on gender, disability, race or other legally protected categories.  The expanded use of e-mail and the Internet has dramatically increased the ways in which employees can be harassed on the job.  It has also increased the ability to document what a potential harasser has done on the job and in this way has made investigating such claims somewhat easier if they involve e-mail, use of text messaging or the Internet. The same is true of social networking sites because those sites provide another forum in which employees can be harassed by co-workers and/or a hostile work environment can be created.

What Constitutes Harassment? Harassment can be sexual in nature or it could be based upon age, race, gender, color, disability, religion, sexual orientation, gender identity, or any other legally protected category.

 Harassment can include, but is not limited to, the following:

• Requests for sexual favors;
• Unwelcome physical contact;
• Sexually explicit language or gestures;
• Uninvited or unwanted sexual advances, including suggestive comments;
• Sexual innuendos or sexually oriented “kidding” or “teasing”;
• Jokes that are discriminatory or make fun of a particular legally protected category of individuals (ex: race, color, religion);
• An offensive overall environment, including but not limited to the use of vulgar language; Inappropriate and/or degrading comments based on gender, race, or other legally protected category; and
• Inappropriate conduct that interferes unreasonably with an individual’s work performance, that creates an intimidating, hostile or offensive working environment or otherwise is harassing

Management Actions to Stop Harassment in the Workplace.

1. Implement an Effective Harassment Policy.

               Employers can and should implement an effective harassment policy.  While there is no specific form of policy that is considered "effective" under the law, it is clear that the policy needs to be reasonably calculated to prevent and correct harassment that occurs in the workplace.   The policy should be plainly worded so that employees clearly understand what they need to do in order to raise a complaint of harassment. The policy should address electronic communications of harassing material as well, including e-mail, text messages and instant messaging.  The complaint procedure should also be clearly outlined as to how complaints are processed.  In addition, the policy should clearly communicate that there are disciplinary consequences not only for engaging in harassing behavior, but also for failing to report harassing conduct that is witnessed by an employee.  The following provisions should be included in a harassment policy:

• A specific provision that tells employees that they will not be retaliated against for filing a complaint of harassment;

• Include a specific formal complaint procedure in the text of the policy including information on who an employee should report complaints to, and how the complaints will be investigated;

• Include a bypass mechanism that allows employees an alternative route to complain if the harasser is the person to whom the employee is supposed to file his or her complaint of harassment with.

2. Training for Employees and Supervisors.

               Training is really the key to implementing an effective policy. If supervisors are not trained as to how to handle harassment in the workplace, nor are they aware of the consequences of failing to adequately handle allegations of harassment, a policy would not be worth the paper that it is written on. It is a good idea to have not only supervisory training sessions, but also training sessions that make employees aware of what is and what is not acceptable behavior in the workplace.  In addition, employer training sessions will help an employer’s burden of ensuring that employees have a clearly defined procedure as to how to address harassment in the workplace.  If the employer has not done its job in clearly communicating to its employees how to raise a complaint of harassment, an employer will not likely be able to raise an affirmative defense to the court that the company had a procedure in place but the complaining employee unreasonably failed to take advantage of the employer’s complaint process.  In addition, training sessions reinforce for all employees what behavior is and is not acceptable in the workplace. 

3. Implement a Written Complaint Procedure.

               A part of any effective anti-harassment policy is a requirement that all complaints of harassment be made in writing.  This requirement helps to provide employers with a guideline as to what specifically the employee is alleging, and also, what needs to be investigated.

4. Take Prompt Remedial Action – Independent Investigation.

               Once an employer becomes aware of harassment, the law imposes a duty on the employer to take prompt remedial action reasonably calculated to end the harassment.  It is also important to note that the law also imposes this same burden on employers where the employer should have been aware of the harassment.  It is also necessary that someone be appointed to conduct an investigation into allegations of harassment. There should be prompt efforts undertaken to look into the matter and if the allegations are sustained, appropriate disciplinary action should be undertaken. If there are other corrective actions required to ensure that the harassment stops, those actions should also be considered. Ultimately if an employer does not take prompt, remedial action in response to allegations of harassment, the employer can be on the hook for liability.

5. Take Disciplinary Action If Necessary.

               It is very important to issue prompt and appropriate disciplinary action if the allegations of harassment are determined to have merit.  There are many different types of discipline that could be utilized, including suspension, termination and written warnings.  Whatever action is taken must be reasonably calculated to promptly correct the harassing behavior.

6. No Retaliation.

               Both State and Federal law make it unlawful to retaliate against an individual for having raised allegations of harassment.  This is an important consideration in determining how to end the harassment in such a way that any action that is taken does not have the appearance of retaliating against the complaining party.