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Business Owners: What You Can Do About Workplace Harassment

Business Owners: What You Can Do About Workplace Harassment

Business Owners: What You Can Do About Workplace HarassmentWith 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

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.


  1. Prasanta
    Feb 27, 2018 at 10:07 am

    I feel this particular article is predominantly biased to female employees as they are facing harassment most of the time. But harassment is also rendered to male employees too. Moreover, this safeguard s available only in USA. For e.g. I was a Dutch MNC employee but suddenly lost job without identifying any reason even though I had a severe road accident while on duty and but my employer did not give any monetary compensation even though iI have developed physical limitations due to this accident. I lost my job as I raised my voice. There are legal safeguards in India but takes years to get justice and one can die before the justice is delivered. This is not USA….

    • Brenda Bernstein
      Feb 27, 2018 at 10:21 am

      Thank you for this input and international perspective, Prasanta. It’s true that we have a lot of protections in the U.S. that are not available in other countries. And you are absolutely right that harassment can be perpetrated against any protected class. What you’re talking about I believe is retaliation for whistleblowing. Here’s what I found on Wikepedia:

      Whistleblowers are often protected under law from employer retaliation, but in many cases punishment has occurred, such as termination, suspension, demotion, wage garnishment, and/or harsh mistreatment by other employees. A 2009 study found that up to 38% of whistleblowers experienced professional retaliation in some form, including wrongful termination.[citation needed] For example, in the United States, most whistleblower protection laws provide for limited “make whole” remedies or damages for employment losses if whistleblower retaliation is proven. However, many whistleblowers report there exists a widespread “shoot the messenger” mentality by corporations or government agencies accused of misconduct and in some cases whistleblowers have been subjected to criminal prosecution in reprisal for reporting wrongdoing.

      As a reaction to this many private organizations have formed whistleblower legal defense funds or support groups to assist whistleblowers; three such examples are the National Whistleblowers Center[28] in the United States, and Whistleblowers UK[29] and Public Concern at Work (PCaW)[30] in the United Kingdom. Depending on the circumstances, it is not uncommon for whistleblowers to be ostracized by their co-workers, discriminated against by future potential employers, or even fired from their organization. This campaign directed at whistleblowers with the goal of eliminating them from the organization is referred to as mobbing. It is an extreme form of workplace bullying wherein the group is set against the targeted individual.[31]

      28 “whistleblowers.org”. whistleblowers.org. Retrieved 2012-07-08.
      29 “wbuk.org”. wbuk.org. Retrieved 2017-01-30.
      30 “pcaw.co.uk”. pcaw.co.uk. Retrieved 2012-07-08.
      31 Matthiesen SB, Bjorkelo B, Burke RJ “Workplace Bullying as the Dark Side of Whistleblowing” in Bullying and Harassment in the Workplace: Developments in Theory, Research, and Practice (2012)

  2. Feb 27, 2018 at 11:07 am

    re: “can you go too far with attempting to stop workplace harassment” seeming a bit ridiculous and overly detailed. I used to think some of the guidelines I read or heard in company policies were verging, or even falling squarely, into the realm of the absurd. Then I listened to the comments & questions of many men, and realized that many of them, even the most well-intentioned, really do not know the boundary between “acceptable” collegial behavior and harassing behavior. For far too long in so many areas of life men have been subtly taught that so many obnoxious kinds of behavior are the norm that now they can’t see where the line is, and actually need detailed instruction. I know it often seems silly and excessive, but it is unfortunately often necessary in order to re-educate many on what is appropriate and what is inappropriate.

    • Brenda Bernstein
      Feb 27, 2018 at 11:19 am

      It’s true, Beth. Specific rules are much easier to follow than “use your judgment.” And, blanket rules have their downsides too. If I’ve been friends with someone for years and have an established relationship, or if someone is going through a hard time and needs a shoulder to lean on, a 1-second hug policy doesn’t seem to apply.

      I guess the lawyers at NBC decided having the rule would cover their butts (no harassment intended) so it’s a better policy as a base.

      • Feb 27, 2018 at 6:53 pm

        Brenda, your reply illuminates a good reason why companies need very specific guidelines. You are speaking as a woman with certainty about the comfort level of the person you hug, and their openness & willingness to be hugged by you. Being hugged in the workplace by a man: a man’s assumption that the established relationship is such that a hug is appropriate may be wildly off the mark. The woman being grabbed and hugged may not want to be hugged at all! The man may think the hug is offering comfort, but he may be sensorily blind to the fact that the woman is holding herself rigid, slightly pushing him away, and averting her face with a grimace. She may be reluctant to tell him his hug is unwelcome; she may realize his intention is good and not want to offend him. In addition, that hug may have been intended innocently, albeit executed awkwardly. What about the quick close hug by a man with an erection who presses his groin against yours, rubs his chest against your breasts and quickly lets go? It may be only a second or two, and no one else may realize what the is doing, but that is certainly not ok! So, hugs, innocent as they may seem, do need to be curtailed.


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