Unlawful harassment, including sexual harassment, has plagued the workplace since long before the madmen days of the male-dominated business world of the 1950s and 1960s, but its visibility has increased in recent years because of the growing #MeToo movement. Irrespective of these developments, but perhaps more acutely because of them, employers should heed the cautionary tales of those who have tumbled in the wake of harassment allegations, including countless well-recognized celebrities, politicians, and media figures. Fortunately, a few simple and consistent measures, such as the adoption of a written anti-harassment policy and the implementation of a proper training program, can help reduce the risk of unlawful conduct in the workplace.
All employees are protected from unlawful harassment, although understanding what this means, and its full context can be confusing. A common misconception is that anything an employee finds “harassing” is unlawful. This is obviously incorrect. The workplace can be stressful with deadlines, demanding expectations, and sometimes tense or unpleasant personalities. But even having unpleasant personalities in the workplace is not unlawful, just a realistic reflection of the work environment. Harassment is only unlawful if it concerns a protected class or protected activity. The harassment must be sufficiently severe and pervasive to create a work environment that would be intimidating, hostile or offensive to the reasonable person.
Policies and Handbooks
Anti-harassment policies should be broadly crafted to prohibit all forms of harassment, not just sexual harassment. They should include specific details prohibiting unlawful conduct, describing the reporting processes and avenues, and identifying the consequences for harassing others. All employees should understand that they have the right to raise concerns and will be protected from retaliation. Employers are well-advised to secure signed acknowledgments from employees noting that they have received and are aware of the policies.
Employees should be trained to identify harassment and to prevent it in the workplace. Training should include instruction on reporting harassment, and the avenues available to employees to raise concerns. Supervisors should receive additional training in spotting and preventing harassment. Human resources professionals should be trained to properly address, investigate, and correct harassment when it occurs.
Investigation and Remediation
Workplace harassment may eventually affect many workplaces. Any reported concerns should be handled quickly and carefully. All claims of harassment should be taken seriously and investigated. In serious cases, thorough investigative procedures should be followed, including comprehensive witness interviews along with document and evidence review if applicable. Well-trained human resources professionals should handle these tasks, or secure and delegate them to experienced professionals. Investigators and supervisors should keep the investigation confidential to the extent practicable. More importantly, they must ensure that witnesses and reporting parties are protected from any form of retaliation.
When harassment has been identified and when reported concerns are validated, employers must implement prompt remedial measures. This does not mean that offenders must always be terminated. Often lesser forms of discipline may prove more fitting, depending on the nature, intentionality, frequency, and severity of the harassment. The goal is to impose discipline and training that is reasonably designed to correct on-going harassment and prevent it from recurring. In the most serious situations, the only appropriate remediation is termination.
Serious attention to workplace harassment will help protect employers from the damage that unlawful harassment inflicts, including high-profile claims and multi-million dollar verdicts. Seeking advice from an experienced employment attorney can help ensure that these protections are properly implemented and followed.
Chris M. Mason is a member at Jennings, Strouss & Salmon, P.L.C. Mason counsels employers and management on all aspects of labor and employment law, including collective bargaining and union organizing; restrictive covenants; employment discrimination; sexual harassment; whistleblowing; retaliation; wrongful termination; personnel policies; reductions in force; trade secrets; restrictive covenants; duty of loyalty; drug and alcohol testing; wage and hour; and other state and federal laws, rules, and regulations.