Preventing Harassment Claims: Best Practices
Workplace harassment is unlawful and results in thousands of legal claims every year. This article describes prohibited workplace harassment and provides best practices for employers to minimize the risk of a harassment claim.
The EEOC reported in June 2016 that one third of the charges filed in fiscal year 2015 included an allegation of workplace harassment. While workplace harassment includes more than harassment based upon sex, many of the claims asserted were, and continue to be, based upon sexual harassment. Accordingly, this article will focus mainly, although not exclusively on sex-based harassment.
Also, in 2016, the EEOC published a Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace. Report link: https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm The Report, written by the Co-Chairs of the Task Force (two EEOC Commissioners at the time) and informed by input from the Select Task Force, is an interdisciplinary assessment of the causes and effects, as well as strategies for preventing and responding to such harassment in the workplace. It is an interesting and enlightening assessment.
Why Should Employers Care About Workplace Harassment?
Employers should care about and work to prevent workplace harassment because:
- The number of harassment charges filed has remained steady over the last several years.
- Harassment claims expose employers to significant liability. Jury awards of hundreds of thousands of dollars and more are not uncommon.
- Employer liability for harassment includes not only sexual harassment, but harassment on the bases of other legally recognized protected classes, such as race, national origin, disability, age (40 or older) and genetic information.
- State or local law may also prohibit harassment on the bases of other protected classes not recognized by federal law.
- In some cases, employers can be liable for a single egregious harassing act by an employee.
- Even consensual office romances can result in harassment claims, particularly when one employee decides to end the romance.
- Harassment can occur over social media and other technological mediums, making it difficult for employers to detect and address.
- Some states require that employers conduct regular sexual harassment prevention training.
- Proactively addressing harassment before it results in litigation allows employers to resolve employee concerns early, assert stronger defenses in lawsuits and mitigate damages if lawsuits cannot be avoided.
- Workplace harassment has numerous non-legal negative effects, including loss of productivity, negative publicity and an adverse impact on employee morale and turnover.
Preventing Harassment Claims: Best Practices
There are numerous practical steps an employer should take to minimize their risk of harassment claims:
- Implement an appropriate and effective anti-harassment policy;
- Train all employees regarding your anti-harassment policy and procedure, including those responsible for implementing and enforcing your policy;
- Respond thoroughly and appropriately to all harassment claims promptly and in a manner intended to end harassment;
- Take prompt corrective action intended to end harassment;
- Thoroughly document the complaint and what you did in response.
Laws Prohibiting Harassment
Workplace harassment is a form of unlawful discrimination. The primary federal statutes prohibiting harassment are:
What is Prohibited?
Federal employment anti-discrimination laws prohibit all forms of harassment based upon an employee’s protected class, including unwelcome and offensive conduct that is based upon a person’s protected status that affects the terms and conditions of employment.
A harassment claim for retaliation can also be claimed for doing any of the following under the federal employment anti-discrimination laws:
- Filing a discrimination charge.
- Participating in any way in a proceeding (including investigations or lawsuits).
- Opposing employment practices they reasonably perceive are unlawfully discriminatory.
Harassment claims under Title VII are generally divided into two categories:
Quid Pro Quo Harassment
Quid pro quo harassment typically applies to sexual harassment. It literally means “this for that” and applies where a supervisor seeks sexual favors in return for a potential job benefit (for example, a promotion or raise) or to avoid a job detriment (for example, a demotion or pay cut).
Quid pro quo harassment requires a tangible employment consequence (often referred to as an adverse employment action) of refusing to submit to a harasser’s demands (for example, an employee being terminated for not submitting to sexual demands of his supervisor).
A tangible employment consequence is a significant change in employment status, including:
- Termination of employment.
- Failure to hire.
- Failure to promote.
- Reassignment with significant changes in quality or quantity of work.
- A less distinguished title.
- A significant change in benefits.
- Unfavorable compensation decisions.
Under a quid pro quo harassment theory, the employer is strictly liable for the harassing behavior because the supervisor with the ability to carry out the tangible adverse employment action is considered to have been acting as an agent of the employer, who has provided them with authority to make employment decisions.
Hostile Work Environment Harassment
Hostile work environment harassment applies to all forms of unlawful harassment, not just sexual harassment. Hostile work environment claims are more widely alleged than quid pro quo harassment and is more subjective. These claims do not require tangible job consequences or financial injury.
To allege a hostile work environment claims, a plaintiff must show that the alleged harassment was:
- Because of protected class status.
- Attributable to the employer.
- Severe or pervasive enough to change the conditions of employment and create an abusive environment, judged by both:
- an objective standard (in other words, any reasonable person would find the conduct abusive); and
- a subjective standard (in other words, the employee in question found the conduct abusive).
Unwelcome harassment means any unwelcome sexual advance or conduct of a sexual nature, when any of the following is true:
- Submission to the advance or conduct is made explicitly or implicitly a condition of employment;
- Submission to or rejection of the advance or conduct is used as a basis for employment decisions;
- The advance or conduct unreasonably interferes with an employee’s work performance by creating an intimidating, hostile, or offensive work environment.
Welcome versus unwelcome conduct can be difficult to clearly discern. The Conduct need not be targeted at the offended individual to give rise to a hostile work environment claim. For example a hostile work environment claim may be asserted based on work discussions that relate to sexual topics or one employee repeatedly asking another employee out who is not interested.
To be actionable against an employer, the HWE harassing conduct must be attributable to the employer, meaning that the employer knew or should have been aware of the harassing conduct and failed to take corrective action. This differs from the standard for harassment resulting in a tangible adverse employment action, which holds employers strictly liable regardless of the employer’s awareness.
The severe or pervasive standard for harassment is the standard for determining whether unwelcome behavior rises to the level of unlawful harassment. Although a person may consider certain behavior harassing, the law will only recognize severe or pervasive harassment as unlawful. As the US Supreme Court has held, Title VII does not create a “general civility code” for the American workplace. Simple teasing, offhand comments or isolated incidents that are not extremely serious do not violate federal law.
Isolated instances of harassment are typically not regarded as creating a hostile work environment unless they are very severe. However, it is possible for a single instance to be so severe that it rises to the level of unlawful harassment
Who Can Be a Victim?
- ANYONE – Gender is Irrelevant
- Women Can Harass Men
- Men Can Harass Women
- Women Can Harass Women
- Men Can Harass Men
Who Can be a Haraser?
- Individuals or Groups doing business with the Company or on the same premises.
Harassment Can Occur Outside the Workplace
- Annual meetings.
- Business trips.
- Holiday parties.
- Sporting events.
Examples of Sexual Harassment
Sexual harassment comes in many forms and is not limited to physical actions. Harassment also includes verbal or non-verbal conduct that rises to the level of being "severe or pervasive."
Examples of sexual harassment include:
- Physical actions, such as:
- Touching or brushing against an individual's clothing, body, or hair.
- Initiating unwanted sexual activity, such as kissing, touching, or hugging.
- Rubbing or touching anyone sexually in the presence of another.
- Exposing oneself.
- Verbal actions, such as:
- Repeating requests for a date with someone who has not returned an interest.
- Telling unwelcome jokes or stories, often with sexual innuendo.
- Initiating unwelcome flirtations.
- Making or using derogatory comments, epithets, slurs, and jokes.
- Making graphic verbal commentaries about an individual's body or using sexually degrading words to describe an individual.
- Using expressions that can be belittling such as "honey," "dear," "sweetheart," or "lady supervisor."
- Non-verbal actions, such as:
- Staring or looking someone up and down.
- Blocking or impeding an individual's movement.
- Following someone inappropriately.
- Giving unwelcome gifts.
- Making sexual gestures.
- Displaying sexually suggestive objects, pictures, cartoons, books, or magazines.
- Winking, blowing kisses, or licking lips.
- Standing or sitting too close to someone.
- But “merely because words used have sexual content or connotation” is not enough.
- Must be coupled with evidence of “discrimination because of sex.”