The workplace is no place for harassment of any kind. It's critical to establish proper policies to identify and prevent harassment.
Harassment of any kind has no place in the workplace. If you're an employer subject to federal anti-discrimination laws, you have a legal obligation to provide a work environment that is free from intimidation, insult, or ridicule based on race, color, religion, gender, or national origin. You must also be concerned with preventing harassment because you can sometimes be sued in state courts, depending on your state's anti-discrimination laws.
Therefore, take steps to prevent and deal with sexual and other types of harassment in your workplace because as an employer, you may be held liable for your own acts of harassment that affect employees in the workplace, as well as the acts of your managers, employees, and even harassment by customers, suppliers, and others who regularly do business with you.
Defining unlawful harassment
Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of that person's (or that person's relatives', friends', or associates') race, skin color, religion, gender, national origin, age, or disability, and that:
- has the purpose or effect of creating an intimidating, hostile, or offensive work environment
- has the purpose or effect of unreasonably interfering with the individual's work performance
- otherwise adversely affects the individual's employment opportunities
Harassing conduct includes:
- epithets; slurs; negative stereotyping; or threatening, intimidating, or hostile acts that relate to race, color, religion, gender, national origin, age, or disability (including jokes or pranks that are hostile or demeaning with regard to race, color, religion, gender, national origin, age, or disability)
- written or graphic material that denigrates or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age, or disability and that is displayed on walls, bulletin boards, or other locations on your premises or circulated in the workplace
The reasonable person standard. If you have a situation where you are trying to determine if some conduct that has taken place is actually harassing conduct, the way to determine it is to use the "reasonable person" standard. If a reasonable person in the same or similar circumstances would find the conduct intimidating, hostile, or abusive, then it's probably harassment.
The reasonable person standard includes consideration of the perspective of persons of the same race, color, religion, gender, national origin, age, or disability as the harassment victim. For example, if a female employee complains of harassment, make sure in applying this test that you take the perspective of a woman, not a man. If, in the perspective of another woman, you would find this conduct harassing, it probably is.
Although harassing conduct must be objectively viewed as creating a hostile work environment to be unlawful, the subjective perception of the particular harassed employee is still significant. If the employee does not perceive the work environment to be hostile because of that conduct, the conduct is not unlawful harassment.
If you have five coworkers, four male and one female, telling "blonde jokes," and none of the employees finds them offensive, hostile, or abusive, the conduct is not harassment. It might not be a bad idea, however, to caution the employees about the conduct's possibly being construed as harassment.
To gain a full understanding of harassment, you have to understand the subtle distinctions in what constitutes sexual harassment and the different types of sexual harassment that exist.
What constitutes sexual harassment?
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when one or more of the following is true:
- A person feels that submission to the conduct is necessary in order to get or keep a job.
- A person feels that employment decisions such as raises, promotions, and demotions depend on whether he or she submits to or rejects the conduct.
- The conduct interferes with a person's work performance or creates an intimidating, hostile, or offensive working environment.
Some important facts to remember about sexual harassment are:
- Both men and women can be victims of sexual harassment.
- Either a man or a woman can be a harasser. According to a Supreme Court decision, illegal sexual harassment may be found even where the victim is the same sex as the harasser.
- The person complaining of sexual harassment does not have to be the person at whom the conduct was directed — it can be someone else who was affected by the conduct.
- Harassment can occur at work, at company-sponsored events, or between coworkers away from work.
- Harassment situations can be peer-against-peer, supervisor-against-employee, or third- party-against employee (such as when a customer or supplier harasses a worker).
- There are several types of sexual harassment.
When is sexually based conduct harassment? Attraction between employees should be a private matter between the employees, so long as it does not cross the boundary between welcome conduct and harassment. To determine whether sexual conduct in the workplace amounts to sexual harassment, distinctions must be made between sexual advances that are:
- Invited: if the conduct is welcome, harassment has not occurred but could cause difficulties down the line if an office romance goes sour.
- Uninvited but welcome: again, while there is no harassment, the potential for harassment could exist if a relationship between two employees breaks up.
- Offensive but tolerated: just because an employee does not make a complaint does not mean that harassment is not occurring — if you see it or hear of it, put a stop to it.
- Flatly refused: this is clearly harassment and should be handled accordingly.
Sexual harassment can take several forms. The two most common forms are described as quid pro quo sexual harassment and hostile work environment sexual harassment:
- Quid pro quo harassment. Quid pro quo is Latin for "something for something" or "this for that." When an employee is asked, either directly or indirectly, to submit to a sexual advance in exchange for some benefit at work (such as a promotion or a pay advance), quid pro quo harassment has occurred. Only supervisors or managers can engage in this type of harassment since it requires the authority to grant a job favor in return for the unwelcome advance or request.
- Hostile work environment harassment. When harassment makes the workplace intolerable because constant sexual or gender-based activity or comment interferes with an employee's ability to do his or her job, hostile work environment sexual harassment has occurred. This type of harassment can be committed by coworkers or supervisors because it does not require any authority to create such an environment. The U.S. Supreme Court has ruled that sexual desire or attraction need not play a part in hostile work environment harassment; a hostile work environment may be found, for example, when employees tease and torment another employee of the same sex unmercifully for reasons relating to the employees physical attributes, love life, etc.
Sexual favoritism can give rise to complaints of sexual harassment. If one employee is granted a promotion in return for sexual favors, other male and female coworkers can allege sexual harassment by showing that they were denied an equal opportunity for promotion because of the improper sexual conduct.
Customers, vendors, or other third parties can also engage in sexual harassment. If you, as the business owner, have some degree of control to stop the behavior, that harassment can be your problem as well. If an employee complains that a customer is making unwelcome sexual advances, you are obligated to tell the customer to stop.
Common situations that may involve sexual harassment include:
- Pinups in the workplace. Pinups containing sexual material (such as centerfolds) can create a hostile work environment. Don't allow these in the workplace.
- Asking a coworker for a date. This by itself is not harassment. But if the person refuses the offer, continued asking can become harassment and should be stopped if a complaint is made.
- Rude treatment of women. A supervisor who treats women rudely, or who constantly demeans the ability of women to perform work, can be guilty of sexual harassment since adverse actions are being taken on account of the employees' gender.
- Verbal abuse and jokes. Comments about a person's appearance or jokes of a sexual nature can constitute harassment if they occur often and are unwelcome. You should make it a policy to stop all types of sexually oriented comments in the workplace.
Is gender-based harassment the same as sexual harassment? There are forms of harassment that are gender-based but are nonsexual in nature. Gender-based harassment is harassment that would not have occurred but for the sex of the victim. It lacks sexually explicit content but is directed at one sex and motivated by animus against that sex, whether female or male.
A comment like "You're a woman, you can't handle this job" may amount to gender-based harassment even though it does not carry a sexual connotation.
State laws prohibit sexual harassment. In addition to federal laws prohibiting discrimination and harassment, some states have similar (and sometimes more far-reaching) laws. Check your state's law and remember that federal law is controlling, unless the state's law offers more protection to the employees, in which case the state law is controlling.
Once you understand harassment in theory, you need to figure out how to prevent it and how to deal with it if it does happen.
Handling and Preventing Harassment
The best way to reduce your liability should harassment ever occur is to have policies and procedures in place that show that you did everything you could to prevent harassment from occurring. As an added bonus, having a policy against harassment will help you deal more effectively with any complaints you get from employees.
The following is a "top ten" list of the essentials for preventing and dealing with harassment:
- Establish an effective complaint procedure and encourage employees to feel comfortable coming to you with any problems they face at work, including any harassment that might occur.
- Create and communicate your anti-harassment policy.
- Treat any incident as if it is a court case from the moment it is reported (most importantly, notify your attorney right away).
- Quickly investigate any claims that might occur.
- Don't take any action that can be seen as harming the person making the complaint. For example, don't transfer the complaining party to a worse location in order to separate the parties.
- Do whatever is necessary to stop the harassment immediately.
- Restore any job benefits that were lost due to the harassment.
- Discipline the person who committed the harassment. If disciplinary action of the harasser is not considered appropriate, document the reasons why.
- Take action to correct past discrimination based on the harassing conduct, if appropriate.
- Painstakingly document the investigation and the steps you took to remedy the situation.
Establishing a procedure for harassment complaints
Harassment complaints are a serious matter. Be sure to keep the following points in mind to appropriately address the claim:
- Take every complaint seriously.
- Investigate every complaint.
- Try not to make credibility judgments based on the reputation of the person complaining or the person accused of harassment. In a very small business where you know all the employees quite well, this is difficult to do. Do your best to remain objective, until your investigation of the complaint is complete.
- Don't assume that the person making the complaint is being oversensitive.
- Don't leave it to the parties involved to work it out.
- Remember that not all employees will label unwelcome conduct as harassment. An employee might complain, for example, about "unprofessional conduct" or "inappropriate behavior." Ask the employee to describe the conduct more specifically.
Tools to use
The Business Toolkit contains a helpful Workplace Sexual Harassment Guide for download.
Creating a zero tolerance harassment policy
An important part of preventing harassment claims and protecting your business is a written policy stating that harassment will not be tolerated. Remember, too, that your state's law may require you to have a sexual harassment policy. Any harassment policy should contain:
- a definition of harassment
- a harassment prohibition statement
- a description of your complaint procedure
- a description of disciplinary measures
- a statement of protection against retaliation
Harassment defined. As with other complex policies, it is important to define exactly what type of conduct it is that is unacceptable and prohibited. Being clear not only helps you enforce the policy, but helps employees understand what your expectations are.
Here are a couple of simple examples of clauses that define harassment:
Sample 1: Harassment. Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of that person's race, skin color, religion, gender, national origin, age, or disability. Harassment can also occur if conduct is directed toward a person's relatives, friends, or associates. Harassment does one or more of the following:
- has the purpose or effect of creating an intimidating, hostile, or offensive work environment
- has the purpose or effect of unreasonably interfering with an individual's work performance
- otherwise adversely affects an individual's employment opportunities
Sample 2: Harassment. Harassing conduct includes:
- epithets, slurs, negative stereotyping or threatening, intimidating, or hostile acts that relate to race, color, religion, gender, national origin, age, or disability (including jokes or pranks that are hostile or demeaning with regard to race, color, religion, gender national origin, age, or disability) and
- written or graphic material that denigrates or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age, or disability and that is displayed on walls, bulletin boards, or other locations or circulated in the workplace.
Statement prohibiting harassment. While it seems obvious enough, your policy should clearly explain that harassment of any kind is unacceptable behavior in your workplace. Here's an example of a clause that does just that:
Sample: Sexual harassment is specifically prohibited because it is unlawful and against company policy. In addition, ABC Company is responsible for taking action against sexual harassing conduct. ABC will take action regardless of whether the specific acts complained of were sanctioned or specifically forbidden, and whether ABC Company knew — or should have known — of their occurrence.
Complaint procedures. In addition to defining and prohibiting the behavior, be sure to tell employees how to make a complaint and what they can expect once they have filed a complaint.
You may want to include the time frame in which the complaint will be investigated and stress that the matter will be handled professionally and confidentially.
Some sample clauses are:
Sample 1: Employees who have complaints should report such conduct to the owner or other official. Allegations of harassment will be promptly investigated, giving due regard to the need for confidentiality.
Sample 2: If you think you are being harassed, report the behavior to the owner. All such complaints will be treated in the strictest confidence and will be promptly investigated.
Disciplinary measures. Be sure to spell out what the consequences for harassment will be if an employee is found to have engaged in such contact. Also refer them to your progressive discipline policy, if you have one.
Here are some examples of a disciplinary clause:
Sample 1: Any employee who engages in harassing behavior is subject to disciplinary measures up to, and including, termination.
Sample 2: Any harassing conduct will result in prompt and certain disciplinary action, including possible termination.
Protection against retaliation. When an employee actually gets the nerve up to report harassment, they are usually already apprehensive and scared because of the hostile treatment they may have received. The employees need to know that you are there to help. For this reason you may want to include a clause indicating that employees will not be penalized or reprimanded for reporting harassment.
Not only will this help employees, but it may actually get them to report harassment before it gets worse or more dangerous.
Here's a sample of such a clause:
Sample: An employee has the legal right at any time to raise the issue of sexual harassment without fear of reprisal.