By Kimberly D. Gray, Senior HR Services Partner
Few workplace issues these days strike fear in the heart of management more than harassment claims. Such claims mean there might be serious issues to address in the work environment and could result in costly litigation, poor employee morale, and high employee turnover.
Businesses that partner with a Professional Employer Organization (PEO), however, can rest easier. The HR professionals at a PEO, such as Resourcing Edge, can help managers with training to reduce potential claims and with investigations if such claims arise. In addition, Resourcing Edge carries Employer Practices Liability Insurance (EPLI) in case litigation is filed.
Here is a quick primer on harassment, how a claim should be handled, and how managers can work to lessen the chance of such claims.
What Is Harassment?
Equal Employment Opportunity (EEO) law defines harassment as personal slurs or other denigrating or insulting verbal or physical conduct relating to a protected class to include; race, age, color, religion, disability, retaliation, genetic information, national origin, or sex (including pregnancy, sexual orientation, gender identity, and transgender status).
Harassment creates an intimidating, hostile, or offensive working environment. It unreasonably interferes with an individual’s work performance or otherwise adversely affects an individual’s employment opportunities that either results in a tangible employment action or is so severe or pervasive as to create an intimidating, hostile, or offensive work environment (VA Office of Resolution Management).
Examples of harassing behavior can include:
- Verbal conduct that includes racial or sexually explicit jokes, foul language, unwanted sexual advances, and derogatory statements.
- Physical conduct, including inappropriate touching or assault.
- Visual harassment to include racially or sexually explicit posters, cartoons, or drawings, as well as obscene gestures.
Handling a Complaint
Employees should be encouraged to report all incidents of potential harassment right away. No complaint should be ignored. And any employees who file complaints should be reassured that every effort will be made to protect them against any further harassment or retaliation.
As soon as an employer receives a complaint, Resourcing Edge can help determine whether a detailed fact-finding investigation is necessary. Sometimes it may not be. For example, if the harasser admits to harassing behavior, there’d be no need for an investigation and appropriate corrective action could proceed immediately. If an investigation is necessary, the HR professionals at Resourcing Edge will work diligently in conducting impartial investigations to help determine if harassment has occurred. They can also partner with employers to develop a corrective action plan.
Harassment complaints are generally analyzed from the perspective of a reasonable person; that is, whether a reasonable person would find (and the employee in fact found) the conduct to be offensive or hostile (U.S. Equal Employment Opportunity Commission). Therefore, allegations that are made by an objectively unreasonable and/or overly sensitive employee, or consist of a single or stray remark, will typically not result in a finding of harassment.
- Generally, an offhand comment—something that might be said once in anger or out of careless disregard for another person’s feelings—does not qualify as harassment either. For example, a stray remark about Muslims and terrorism after a bombing attributed to an extremist group would not constitute illegal harassment even if it was overheard by a Muslim or someone of the same national origin or ethnic background as the people claiming credit for the act of terrorism.
- Minor isolated incidents are generally not considered harassment even if they are directed against someone in a protected group. For example, if someone once told a joke offensive to Jews or Catholics, without having a history of saying such things, it is unlikely that Equal Employer Opportunity Commission (EEOC) or anyone else would consider this harassment. Remember that harassment usually involves a pattern of behavior—something that happens over and over, day in and day out.
- A single, yet particularly shocking or egregious, comment or act may, however, result in liability. For example, a single shocking or particularly egregious act of unwelcome touching or the grabbing of another employee’s person in a sexual manner may constitute sexual harassment.
- It is important to remember that only unwelcome conduct of a sexual nature is unlawful. Therefore, consensual workplace dating relationships or romances generally do not constitute sexual harassment.
One of the best ways to protect against harassment is a well-written policy, training on the policy, and acknowledgment of it by all employees and managers.
- An organization’s policy should always include, but is not limited to:
- A clear explanation of prohibited conduct.
- Assurance that complainants will be protected against retaliation.
- A clear description of how to file complaints.
- A complaint process that provides a prompt, thorough, and impartial investigation.
- Assurance that immediate and appropriate corrective action will take place when investigations determine harassment has occurred.
Partnering with the HR professionals at Resourcing Edge allows you to have an effective anti-harassment policy and provides the peace of mind.
What Can Management Do?
- Read and understand harassment policies and procedures
- Monitor their own behavior
- Speak up in support of a respectful workplace
- Investigate incidents immediately
There’s a lot you can do to help prevent workplace harassment. Make sure you have read and understood the company’s harassment policy and that you familiarized yourself with the complaint procedure. It’s important for everyone to be well-informed about what to do in the event of a problem.
Finally, it’s important to note that harassment in its broadest sense can involve behavior that falls short of statutory discrimination. Although some types of behavior might not be against the law and might not be considered harassment per the statues, that doesn’t mean employers should condone that kind of behavior in their organizations. For example, harassing someone because of weight, dress, mannerisms, or because of some other feature or characteristic should not be tolerated. Rude, insensitive, or abusive behavior directed against an employee—for whatever reason—is unprofessional and inappropriate.
The HR experts at Resourcing Edge provide training and consultations to assist in setting the expectation that all employees are to treat one another with courtesy and respect.
Kimberly D. Gray is a Senior HR Services Partner at Resourcing Edge, who has 25 years of experience in employee relations, training, and compliance.