by Mary Lou Floyd, CCLS, ABL Client Services Director/Paralegal/Office Administrator
There are many different forms of harassment in the workplace. What was once considered horseplay or innocent ribbing, can now be construed as harassment. However, for harassment to be considered unlawful, it must create a hostile work environment, or an environment that is offensive to a reasonable person.
The most commonly recognized form of harassment by the public is sexual harassment. Sexual harassment may not always involve touching, leering, or suggestive comments. Sexual harassment revolves around harassing behavior that can be clearly linked to sex. As long as the victim can link the harassing behavior to their gender in some way, that can be basis for a case.
But harassment in any form violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA). (1)
ANY unwelcome behavior that is based on or linked to race, color, religion, sex, national original, age, disability or genetic information is harassment.
Other forms of offensive conduct include offensive jokes, slurs, name calling, physical assault or threats, intimidation, ridicule, insults, put-downs, offensive pictures, offensive objects, and any other form of conduct that affects the work performance.
A recent case out of California, demonstrates a form of harassing behavior that is associated with gender: Hayes vs. Temecula Valley Unified School District, Court of Appeal, 4th Appellate District, Division One, State of California, Case No. D072998 (filed 2/28/18).
Karen, a middle school principal, got excellent reviews for many years. Then a school district employee, a man, began criticizing her performance in front of her peers. The man also allegedly yelled at female co-workers and often slammed his fist on a desk when making a point. He only did this when talking to women and never when talking to men. Karen concluded this meant he was hostile toward women and not men. She complained to management and HR, but nothing changed. After being transferred to a different school, she sued, alleging she had been the victim of sexual harassment. The school district argued that his behavior was focused on performance and wasn’t related to sex. But the court disagreed. It said that when poor behavior like yelling and slamming fists is only directed at women, it may be sexual harassment. Karen’s lawsuit will go to trial. (Courtesy of HR Specialist: Employment Law, Vol. 49, No. 3 – March 2019)
Preventing and striving to eliminate harassment in the workplace will create an environment where employees feel free to raise concerns and feel free to point out unwelcome harassing conduct. Establishing a complaint or grievance process will confirm to employees that harassing conduct will not be tolerated in the workplace and must stop. Having such policies in the workplace, and making sure that they are applied equally and followed by all, can help productivity, increase employee happiness, plus help prevent harassment lawsuits.
At this point, small business owner-employers might want to ask themselves:
- Does harassment take place in our workplace?
- Do we have steps in place for reporting harassment?
- Have all employees participated in harassment training?
- What do I need to do to ensure the workplace is free of any harassment?
- Have all supervisors and employees received harassment training by the deadline of January 1, 2020? (2) Do I have the documentation to prove this? (3)
Harassment training can teach supervisors reporting responsibilities and how to respond to employee’s complaints. Steps to include in the process are for supervisors to immediately contact HR and report the incident. By providing proper harassment training, you can have confidence that your managers and supervisors will react in the proper manner to any harassment complaints.
A 2017 case from New York, demonstrates the value of having a procedure in place for reporting – giving notice – of any complaints: Duarte vs. St. Barnabas Hospital, Case No. 1:15-cv-06824 (S.D.N.Y. 2017):
Ruth had a hearing disability since she was a child. Still her boss frequently mocked and berated Ruth for her inability to hear well, sometimes calling her “deaf” and “stupid.” She didn’t report this to HR. But after she received a negative performance review, Ruth decided to write a rebuttal that included a specific complaint about the boss’s harassment. Nobody investigated it. Ruth sued for disability harassment. A jury awarded her $250,000 for mental suffering and punitive damages. The company asked the court to toss out the verdict because Ruth never officially filed a complaint with the company. But the court said that while she hadn’t used the formal complaint process, she had brought it to management’s attention during the review. And that was enough notice. (Courtesy of HR Specialist: Employment Law, Vol. 49, No. 2 – February 2019)
All bosses, managers, supervisors must report any harassment they become aware of –even if they are the victim. Tolerating harassment in any form and not reporting it indicates you condone the behavior. Staying silent is not an option! Instead that will cause the situation to fester and continue to grow until it is a more serious problem.
Consider a recent case EEOC v. Flash Market, Inc., Civil Action No. 2:17-cv-02717, U.S. District Court for Western District of Tennessee, Memphis Division:
A female cashier at a Memphis gas station complained to her in-store manager that when the male regional manager would visit, he would proposition the cashier for sex and touch her inappropriately. The in-store manager’s response? She told the cashier she couldn’t help. And, in fact, she said the same regional manager had also harassed her in the past. The cashier still complained and was fired. The EEOC was sued on the cashier’s behalf and won a $100,000 settlement for her. The employer must also revamp its harassment policies and train all managers on appropriate reporting of complaints. (Courtesy of HR Specialist: Employment Law, Vol. 49, No. 4 – April 2019).
Some helpful tips:
- Don’t shrug off complaints – conduct an investigation as soon as you learn about the alleged inappropriate conduct. Whether it’s frivolous or unfounded – investigate. If it’s an anonymous complaint – investigate.
- Have a process/plan in place. Why are you investigating? Who will conduct the investigation? Who are the witnesses to be interviewed? What evidence needs to be collected? What is your timeline for the investigation?
- Don’t take too long to investigate, as this may allow for continued unlawful or inappropriate behavior and allow the situation to fester.
- Training – make sure each person is trained to conduct impartial, professional, and credible investigations. Or hire an outside party to conduct the investigation.
- Don’t conduct unlawful searches. Don’t search employee’s personal belongings. Don’t monitor certain communications without consent.
- Don’t interview too aggressively. Claims can arise that lead to complaints of false imprisonment and coerced confessions. Choose an appropriate location for interviews. Use pre-approved and/or open-ended questions.
- Don’t promise confidentiality. Certain information gathered during the investigation must be disclosed to appropriate parties.
- Create a report. Document the evidence, results, interviews, relevant findings. Include a summary of the matter, identity of parties and witnesses, description of documents, findings, credibility determinations, and recommended action.
- Reach a conclusion – define steps to address the misconduct. Include confirmation of whether or not the misconduct occurred.
- Don’t take any actions that count be construed as retaliation against the person who made the complaint, such as moving their desk or putting them on leave.
Be consistent in your practices and use your best judgment. Contact the ABL team at firstname.lastname@example.org if you have any questions. We can help you implement policies and procedures to make your workplace legally compliant.
1 – from EEOC website at https://www.eeoc.gov/laws/types/harassment.cfm
2 – Effective January 1, 2019, California requires employers with 5 or more employees (located anywhere) to provide not only two hours of sexual harassment and abusive conduct prevention training to supervisors (and to any out-of-state supervisors of California employees) but also at least one hour of such training to ALL their employees in California. All must be trained in the 2019 calendar year, before January 1, 2020…” From CalChamber.
3 – ibid