NOT YOUR FATHER’S WORKPLACE – HOW EMPLOYERS CAN PREVENT UNLAWFUL HARASSMENT TODAY
It only takes a few minutes of watching the popular TV show “Mad Men” to realize that the workplace in the U.S. has changed significantly since the early 1960’s.
Yes, Generation X, Y and Z-ers, believe it or not, the show does a pretty good job reflecting what the workplace was like less than 50 years ago. It was perfectly acceptable for an executive to tell his “girl” to fetch him a cup of coffee or to discriminate against an employee on the basis of race or religion. Fortunately for all of us, Title VII of the Civil Rights Act was passed in 1964, making this type of discriminatory behavior unlawful in the workplace. Over the course of the past 50 years, additional laws have been passed (ADA, ADEA, etc.) providing more protections to workers. However, even though we have come a long way from the behavior practiced by Don Draper and his colleagues at Sterling Cooper, employers still find themselves faced with harassment complaints. So, what can an employer do to reduce the possibility of receiving an EEOC complaint from an employee who feels that he/she has been a victim of workplace harassment?
Definition of Harassment
Let’s start with the basics. What exactly is the definition of workplace harassment? According to the Equal Employment Opportunity Commission (EEOC), harassment is described as “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.” Therefore, workplace harassment today not only includes what may be considered as typical sexual harassment (including quid pro quo), but also, as demonstrated by recent cases brought by the EEOC, sexual identity (i.e., transgender employees), national origin, or religious beliefs.
Unlawful harassment is not limited to behavior by an employee’s direct supervisor. Rather, inappropriate behavior by any person associated with the employer can be regarded as unlawful harassment.
It should be noted that petty slights, annoyances, and one-time incidents, with the exception of extreme cases, are not considered unlawful harassment. Harassment becomes unlawful where:
- enduring the offensive conduct becomes a condition of continued employment; or
- the offensive conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive.
While employers should encourage employees to inform a harasser directly that his/her behavior is unwelcome and should stop, it remains an employer’s responsibility to provide a workplace free of all behavior that can be considered harassing, non-productive, or detrimental to work performance.
Employers should be aware that a harassment claim can be made by anyone who believes he/she has been affected, directly or indirectly, by offensive conduct. Therefore, it is imperative that employers make it very clear to all employees that racist or sexist jokes, slurs, epithets/name-calling, threats, intimidation, insults, and the posting of offensive pictures in the workplace will not be tolerated.
Employer Liability for Harassment
When it comes to workplace harassment, the legal responsibility of the employer is a form of “vicarious liability.” Vicarious liability is a legal doctrine under which a party can be held liable for the wrongful actions of another party. In the case of workplace harassment, employers can be held legally responsible for the discriminatory or harassing behavior of their employees. Furthermore, the employer is equally liable for harassment by non-employees, such as independent contractors, vendors, etc., over whom it has control. An employer is required to take prompt and appropriate action if it knows or should have known about an incident of harassment. Therefore, it is important that an employer be proactive rather than reactive when it comes to preventing harassing behavior in the workplace.
What Can an Employer Do To Avoid a Harassment Complaint?
As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure” and this is particularly true when trying to avoid employee harassment complaints. Prevention is the key in attempting to eliminate harassment in the workplace, and the best starting point for an employer is to create an effective Harassment Policy/Prevention Program. This Program should include:
- A harassment policy that defines what constitutes harassment and declares that harassing behavior in the workplace in any form will not be tolerated. It is important that a harassment policy state that it applies not only to the workplace during normal working hours, but also to business travel and all work-related social functions. This policy should also make it clear that retaliation against any individual who reports a bona fide complaint is strictly prohibited.
- A complaint procedure that is accessible, confidential (to the extent possible), and encourages employees to come forward if they feel they have been a victim of harassment. This procedure should designate an alternate person other than an employee’s supervisor to whom complaint reports can be made (i.e., a member of the HR staff, or an Office Manager).
- Recurring training and education programs to sensitize management and employees to harassment issues.
- A prompt and thorough investigation of every complaint.
- An investigation process that results in corrective action when necessary, including disciplinary action if it is determined that harassment in violation of the policy has occurred.
- As many methods as possible to communicate the policy to management and employees. Examples include posting the policy on bulletin boards, putting a notice in payroll stuffers, or sending out a reminder from the President/CEO on an annual basis.
Lastly, it is advisable to have an employment attorney review your company harassment program to make sure it includes all of the elements to help reduce the possibility of a harassment claim being made by an employee.
Fortunately, times have changed since the era portrayed on “Mad Men”, and laws have been put into place to assure a productive workplace for ALL employees regardless of race, age, disability, etc. Hopefully, Don and his colleagues will learn to change their behavior patterns, or they can expect to spend quite a bit of time in the Human Resources office at Sterling Cooper.