Workplace harassment of various kinds is an unfortunate reality in businesses. And employers are subject to liabilities when it occurs. HR managers needs to be clear about harassment laws and policies.
Despite the recent news stories about the subject, harassment of various types does not appear to have decreased noticeably in the American workplace. In fact, current statistics reflect either a heightened awareness of harassment, or an actual increase in incidents. Either way, the numbers are too high.
Workplace harassment is uncomfortably frequent based on the reported statistics. According to the U.S. Equal Employment Opportunity Commission (EEOC),
Almost fully one third of the approximately 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment. This includes, among other things, charges of unlawful harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion.
That equates to almost 100 harassment charges reported each day by employees. If one takes into account that not all incidents are actually reported to the EEOC, it would mean that hundreds of acts of workplace harassment may be occurring on a daily basis.
How Workplace Harassment is Defined
The EEOC defines harassment "unwelcome conduct" based on any number of characteristics including race, color, religion, sex (including pregnancy), national origin, age (40 or older), and disability or genetic information.
It is a bit more complicated than this, however. For example, not all "unwelcome conduct" is considered harassment, and not all harassment is illegal. The EEOC clarifies illegal conduct accordingly,
"Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws."
What this means in practice is that a number of "unwelcome" conduct such as petty slights, annoyances, and isolated non-serious incidents are not illegal. In fact, for conduct to be classified as unlawful, it must create a work environment that is "intimidating, hostile, or abusive" to reasonable people.
What may seem petty or simply annoying, however, is actually unlawful. For example, offensive jokes, verbal slurs, epithets or name calling, ridicule or mockery, insults or put-downs, offensive objects or pictures, physical assaults or threats, and intimidation all fall under the rubric of unlawful harassment. Harassment can even include intentional interference with work performance.
The Severity of Sexual Harassment
Although harassment includes a wide variety of actions and conduct, sexual harassment is an especially volatile issue. Because of this and the serious nature of this type of harassment, the EEOC has an additional section that outline the legal parameters for defining sexual harassment:
...unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex."
While it's not unlawful to engage in simple teasing or offhand comments, employees and managers are far better off avoiding such actions. Isolated and non-serious incidents are not considered harassment, they become illegal when they are
"so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted)."
Employer's Liability for Harassment in Their Workplace
An employer is liable for harassment carried out by a supervisor that results in termination of the victim, a failure to promote or hire, or any loss of wages, according to the EEOC. This applies even if the employer, or managers of the supervisor, were unaware of the harassing conduct.
As the EEOC states,
"The employer will be liable if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action."
What this means for employers is that suitable and sufficient preventative and corrective policies and procedures need to be in place and effectively enforced. The law does allow that an employer can avoid liability if it can prove that it:
1) Reasonably tried to prevent and promptly correct the harassing behavior; and
2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Aside from the human cost and the residual affect on fellow employees, the costs of a successful harassment claim on behalf of an employee can be crippling, especially for smaller businesses. In 2015 the EEOC recovered $164.5 million from businesses for workers alleging harassment. And this does not include associated legal fees.
There are other, intangible but equally real costs that come with harassment. Workplace harassment exacts a steep cost to those who are victims including mental, physical, and economic harm, and all employers should be prepared. In addition, workplace harassment - reported or not - affects all workers, and its true cost includes decreased productivity, increased turnover, and harm to the organization's reputation.
A Partner for HR Management Best Practices
Accurate and timely management and compliance practices are required for HR professionals in every business. Maintaining this can be challenging, but there are options.
Accuchex is a reputable workforce management services provider and can not only assist you with the burden of your ongoing compliance demands, but can potentially prove to be a more cost-effective solution, as well.
Click the button below to learn what you need to know about labor law in California. For more immediate information, feel free to call Accuchex Payroll Management Services at 877-422-2824.