With the recent rash of harassment revelations in the media, companies are taking their anti-harassment policies more seriously than ever. And it’s not just the Weinstein Company and Fox that are looking at their exposure to lawsuits. If you are the owner of a business – any business with employees – you need to learn everything there is to know about workplace harassment, and how to 1) prevent it and 2) handle it if it does occur.
Let’s first get clear on the definition of workplace harassment:
Harassment under federal law is “unwelcome conduct that is based on race, color, religion, sex (including gender identity and pregnancy), national origin, age (40 or older), disability, genetic information, sexual orientation, or parental status.”
Two common types of harassment are
- Quid Pro Quo (“This for That”). In quid pro quo harassment, enduring the offensive conduct becomes condition of continued employment. Examples:
- Denying employment or a promotion for failure to perform sexual acts or participate in religious activities.
- Giving preferential treatment in exchange for sexual cooperation or joining a religion.
- Hostile Work Environment. Here, the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Some more considerations:
- A “hostile environment” may be created by the unwelcome conduct of supervisors, co-workers, customers, contractors, or anyone else with whom the victim interacts on the job.
- Harassment occurs when this conduct renders the workplace atmosphere intimidating, hostile, or offensive.
- Factors to consider include but are not limited to the frequency and severity of alleged harassment, whether it is physically threatening or humiliating, and whether it unreasonably interferes with work.
- Behaviors contributing to an unlawful hostile environment may include but are not limited to discussing sexual activities, unnecessary touching, displaying sexually suggestive or racially insensitive pictures, using demeaning or inappropriate terms or epithets, using indecent gestures or crude language, or sabotaging a victim’s work.
Why you want to avoid harassment claims.
Harassment claims are easy to file and hard to get dismissed. They consume time (an average of 318 days), they cost huge amount of money regardless of their validity (average of $40 – $125K in settlements which can cover back pay, compensatory damages, punitive damages, and attorney’s fees & costs), and they can damage a company’s reputation/brand irreparably.
According to the New York Daily News, New York State has settled at least 85 lawsuits involving claims of sexual harassment or sex discrimination at agencies, hospitals, prisons and schools it oversees, costing the state a combined $11.87 million. Clearly you want to avoid such lawsuits if you possibly can.
Even before a lawsuit, sexual harassment and other forms of harassment have an impact on your organization. The acts themselves are disruptive in the workplace, decrease employee morale, increase absenteeism and turnover, reduce productivity, and damage the reputation of the company.
It’s a no-brainer that every company must address harassment before, during, and after it happens.
Harassment lawsuits gain teeth not because the harassment happened, but because they did not respond properly. Take these two examples:
Chopourian v. Catholic Healthcare West is one of the best-known cases in the harassment category. In this case, a physician assistant made 18 complaints regarding working conditions and bullying at Mercy General Hospital, all of which were ignored, before she was fired. The reason for her termination? Allegedly failing to report for work – but it was found that she was explicitly told not to come in for coverage that day. When she obtained alternative employment, she lost it because Mercy General would not provide her with required “privileging.” She was awarded $168 million in a settlement, just three days into a jury trial.
In contrast, in Chaloult v. Interstate Brands, an employer won the case because it was proven that the claimant did not complain to management and a witness confirmed the alleged harassing behavior could not reasonably be defined as harassment. Importantly, the employer correctly trained employees and had a protective anti-harassment policy that covered where to report harassment and provided multiple channels for reporting. The company even continued the investigation after the employee resigned.
You must take your responsibility seriously as an employer.
As an employer, if you knew or should have known and failed to take prompt and corrective action, you can be liable – regardless of whether an employee or some other party perpetrated the action.
In contrast, if you reasonably tried to prevent and promptly correct the harassing behavior through training, a policy known to your employees, and prompt investigation/corrective action, you have strong footing to defend any lawsuits. See this article from the American Bar Association on how to avoid putting your company at risk.
If you have a small company, you can bring an outside organization in to advise you on your policy and handle any complaints. In Madison, WI, where I live, a local employment agency, QTI, provides this service (and gave a presentation on the topic that I attended last week – thank you QTI for providing information and inspiration for this blog).
There are many questions that can arise as to what policies to put into place. For instance, should your company have a “no-dating” policy? A “required snitching” policy? Hugging protocol (as NBC just put into place)? Can you go too far with attempting to stop workplace harassment?
Regardless of the size of your business, it’s essential to protect yourself and your company from time-consuming, expensive, and reputation-damaging harassment claims. If your organization is not in compliance with the best practices in this area, I recommend taking action now.