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Harassment: Not Just a Buzzword, It’s Liability

The continued momentum of the #metoo movement has made workplace harassment a buzzword not just thrown around by your surly HR rep, but one that we are all acutely aware of. However, the term shouldn’t be relegated to just a buzzword given the high legal stakes associated with running afoul of anti-harassment policies.

According to the Equal Employment Opportunity Commission (EEOC), “harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act of 1990 (ADA).” This is because harassment is typically based on race, color, religion, sex, national origin, age, disability or genetic information.

They note that harassment becomes unlawful when an individual is forced to endure the harassment as a condition of their continued employment or in cases where the harassment is so severe that it creates a work environment that a “reasonable person would consider intimidating, hostile, or abusive.” Further, harassment is unlawful in cases where an individual has served as a whistleblower against a previous act of discrimination or in cases where they are otherwise challenging employment practices at their current company.

As you can tell from the above description, harassment is subjective, meaning that a report can be based on an individuals’ perception of undesirable behavior. However, the EEOC has put some parameters around it, noting that “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality” because it does not meet the metric of creating an “intimidating, hostile, or offensive to reasonable people.” However, offensive jokes, slurs, name calling, physical assaults, threats, intimidation, insults, ridicule, mockery, or any action that can interfere with an individual’s ability to perform their job all meet the bar for what is considered workplace harassment.

In terms of liability, the EEOC isn’t messing around. They state that “the employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages.” Further, employers are at fault if they knew about or reasonably should have known about incidents of harassment and failed to take the “appropriate corrective action.”

So how can you, as a business owner, protect your company from these claims?
The first thing to know is that the EEOC doesn’t work in broad strokes, they make a decision as to whether there is a case to pursue based on the results of an investigation that will analyze the nature of the alleged incident, the context in which the misconduct occurred, and any additional relevant information to aide in the decision making process. However, they do note that employers can GENERALLY avoid liability if they can prove that they “reasonably tried to prevent and promptly correct the harassing behavior [and] the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.”

Based on this information, our best advice is to first have an airtight anti-harassment policy included in your employee handbook. The policy should include, at a minimum:

  • A statement on the company’s position on harassment.
  • Why your company has such a policy (a line such as “to create an environment free of harassment”).
  • A definition of what constitutes harassment (bonus points if you include some examples of what is and what isn’t harassment).
  • A statement of what happens in cases where the harassment policy is breached.
  • A statement of what your responsibilities are as an employer in terms of what you will do to create a safe environment and handle reports of harassment.
  • A statement of what your expectations for workers are in terms of their professional conduct and adherence to the policy.
  • Information for anyone wishing to make a report in terms of who they should contact and what the reporting process entails.

Because majority of the EEOC’s determination of fault in these cases lies in how these reports are handled by management, you should plan to train anyone who serves in a supervisory role in how to identify signs of harassment, how to handle complaints, and what their involvement in the reporting process entails.

If you need help with crafting an airtight anti-harassment policy or training your managers and employees in such policies, Abel has you covered! Call us at 800-400-1968 to learn more.

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