It is an unfortunate fact of business life that harassment of various kinds continues to occur. But businesses and their HR management can help eliminate it.
Even with the increased efforts at awareness harassment has not appeared to decrease significantly in the American workplace. Whether the current statistics simply reflect this heightened awareness or an actual increase in incidents, the numbers are large.
And the recent events involving entertainment and political figures accused of harassment and assault has brought the issue to the forefront of public scrutiny.
How prevalent is workplace harassment? 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.
Defining Workplace Harassment
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.
However, not "unwelcome conduct" is considered harassment, and not all harassment is illegal. The EEOC states that,
"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."
Keep in mind that this is not an all-inclusive prohibition. Petty slights, annoyances, and isolated non-serious incidents are not given the level of illegality. Instead, in order for conduct to be unlawful, it must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
On the other hand, unlawful conduct can seem to be quite extensive and can include offensive jokes, verbal slurs, epithets or name calling, ridicule or mockery, insults or put-downs, offensive objects or pictures, as well as physical assaults or threats, and intimidation. Harassment can even include intentional interference with work performance.
In a workplace situation, harassment can occur in a number of ways by anyone in the workplace. For example:
- The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
- The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
- Unlawful harassment may occur without economic injury to, or discharge of, the victim.
Sexual Harassment in the Spotlight
Recent news stories have succeeded in bringing the problem and issue of sexual harassment and even assault in the workplace to a place of prominence in the media. They also serve to highlight the fact that harassment can occur without consequence when victims do not speak out.
While it is clear that harassment can include a broad number of actions, sexual harassment is a particularly charged issue. The EEOC offers an additional section delineating the legal parameters that define sexual harassment:
...“sexual harassment” or 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."
Although it's not against the law to engage in simple teasing or offhand comments, caution is advised in this realm. And although isolated and non-serious incidents are not considered harassment as such, it becomes illegal it's "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 Have a Liability for Harassment in Their Business
According to the EEOC, an employer is automatically 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. This holds true 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."
The law does provide that an employer can avoid liability only if it can prove that:
1) it 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.
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 victims including mental, physical, and economic harm. 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.
Best Practices For Harassment Policies
Businesses should routinely review, revise and update their company policies and practices, especially those regarding workplace harassment. Awareness and open communication are also critical for establishing and maintaining a culture that discourages harassment of any kind.
Here are steps for properly dealing with harassment in your organization, should it occur:
1. Leaders Must Take Accountability
Employers and upper management need to take an essential role in a businesses' harassment policies and actions. Central to this is communicating a clear and uncompromising stance that harassment won't be tolerated. This is a statement that must be reiterated and reinforced consistently.
Making a statement is not the enough, however. It is the responsibility of an organization's leadership to ensure that policies and anti-harassment programs are functioning and effective.
2. Document an Effective Policy
It is essential that your organization have a comprehensive company policy regarding workplace harassment. Some points your harassment policy should include:
- That it applies to all employees at every level, plus applicants, clients and customers
- An easy-to-understand description of forbidden conduct
- Encourages employees to report questionable conduct even if it not quite unlawful harassment
3. Implement and Maintain Training
Effective and up-to-date anti-harassment training, sexual harassment prevention training, and guidelines on how to handle sexual harassment should be conducted regularly for all employees. One tactic that is encouraged is to include live, interactive presentations. Senior management should visibly show support for the training and for your company's anti-harassment policies and practices.
An added benefit of a well communicated policies and robust training procedures is the fact that the courts are often show leniency toward employers who show a clear commitment to eliminating harassment.
4. Worker-friendly Complaint Process
Ensure that your organization has an effective complaint system in place that allows employees to easily and confidentially report harassment. Employees should be assured that there will always be quick, impartial and thorough investigations that are conducted as confidentially as possible.
Employees who report harassment need to understand that they won't suffer retaliation, which is itself illegal. It is important that employees are also able to report alleged harassment by senior managers and executives without fear of reprisal or punishment.
Getting Professional Help with HR Management
An updated policy strategy will help your organization meet its obligations, while providing adherence to the law and compliance. Take time to understand the law and prioritize these policies and procedures. In this way, you will make compliance a sure thing.
Another key step in maintaining HR compliance while increasing your company's cost-effectiveness is to consider outsourcing. A professional agency such as Accuchex can provide much-needed help with Human Resources needs and questions.
Accuchex is a full spectrum Payroll Management Services provider offering expertise in Time Management, Insurance and Retirement issues, as well.