Hostile Work Environment Claims Are Not Limited to Sexual Harassment
Measures That All Employers Must Take to Address Workplace Harassment
Most employers are aware of problems related to and have adopted policies prohibiting sexual harassment. An employer who limits its anti-harassment efforts to claims of sexual harassment, however, does so at its own risk.
Both the Equal Employment Opportunity Commission (EEOC) and the Michigan Department of Civil Rights (MDCR) have taken the position that employee conduct that constitutes harassment on the basis of any protected classification is unlawful.
They have also determined that the analysis used in sexual harassment cases should be applied to cases involving workplace harassment because of race, gender, religion, national origin, age, and disability. (Make certain that you check the laws and the positions taken by governmental entities in your own state or country. For example, laws are changing in that new classifications such as weight and gender identity matter in some jurisdictions.)
Sample Workplace Harassment Decisions
Recent court decisions are consistent with the position taken by these administrative agencies. Examples of such decisions about workplace harassment include:
- Hispanic and African-American employees were allowed to pursue hostile environment claims on the basis of race and/or national origin discrimination when they were subjected to ethnic and racial slurs.
- An employer’s harassment policy was found to be inadequate because it recognized only harassment based upon sexual advances and propositions and not harassment based upon gender.
- An employee stated a claim for religious harassment when her supervisor criticized and berated her for her lack of availability on her religious holiday and made derogatory statements to her about her faith.
- A court allowed a disability hostile environment claim by an employee whose supervisor taunted him about his disability, required him to perform work beyond his physical limitations and called him various derogatory names related to his disability.
- A court refused to dismiss a case before trial, holding that a jury should decide whether age was a factor in an employee’s termination. The court cited the fact that a supervisor referred to the employee as “old man” and frequently referred to his aging appearance.
Proactive handling of harassment issues in the workplace should be a priority for all employers. In order to assist employers with this process, the EEOC has issued guidelines addressing numerous forms of harassment. This information can be accessed on the EEOC’s website.
The first part of this article addressed the legal basis for workplace harassment and provided examples of workplace harassment. Are you interested in the steps an employer must take if an employee charges harassment?
Measures All Employers Must Take to Address Workplace Harassment
The following are measures an employer should take to address workplace harassment. This is not a situation in which employers may pick and choose. All of these measures are strongly recommended for your protection and to protect the work environment you offer your employees. All employees deserve to work in a harassment-free workplace.
Develop an Anti-Harassment Policy.
- Implement a policy that prohibits sexual harassment, and harassment based on other protected classifications. The policy should specifically list the other protected classifications and should include examples of the type of conduct that is prohibited, whether oral or written, including lewd comments, jokes or references, and ethnic, racial and religious epithets, slurs and names. The policy should prohibit such conduct by managers, supervisors, employees, customers, and third parties.
Define the Employee Complaint Procedure.
- The policy must include a complaint procedure. The procedure should provide for more than one option for filing a complaint so that an employee does not have to complain to a supervisor or other person who may be involved in the harassment. The policy should notify employees that harassment complaints will be taken seriously, investigated, and will result in discipline against the offender(s), including termination if the inappropriate conduct occurred. The policy should also contain a strong “anti-retaliation” statement so that employees will not hesitate to file a complaint and will feel confident in using the complaint procedure when they have been subjected to harassment.
Distribute and Communicate the Anti-Harassment Policy.
- Employers should ensure that the policy is distributed and communicated to all employees and that employees are given an opportunity to ask questions. Each employee should be required to sign a verification acknowledging that he/she has read and understood the policy. Periodic redistribution of the policy is advised.
Educate the Workforce About Unacceptable Behavior
- The workforce should be educated about the types of behavior that are unacceptable. New employees should learn about the policy during their orientation. All employees should receive periodic refresher information.
Provide Supervisors With Training.
- Employers should carefully select individuals for supervisory and managerial level positions who will treat employees fairly and avoid inappropriate conduct. Further, supervisors should receive additional training to educate them about their important role in preventing harassment in the workplace. Supervisors should be trained to recognize what conduct may create a hostile environment so that they can stop it at the onset.
Investigating a Complaint.
- Upon receipt of a complaint of harassment or when an employer has reason to believe that a potentially harassing situation has occurred or is occurring, the employer must act promptly. It is imperative that an employer investigate all complaints completely and objectively. In addition, an employee making a complaint should be notified as to the outcome of the investigation once a final decision has been made.
The Employer Must Take Appropriate Action.
- If the investigation results in a finding that harassment occurred, remedial action must be taken so that the harassment is eliminated and does not reoccur. This may consist of disciplinary action including discharge, or other corrective action such as training.
In some cases, the employer should also address the needs of the victim by reversing an adverse employment decision (demotion, reassignment, etc.) or providing counseling. Finally, employers should treat like situations similarly in terms of the investigation process, the action taken, and so forth.
Recent court decisions illustrate the need for employers to elevate all types of harassment to the list of important workplace issues. Employers attuned to harassment issues and committed to eradicating workplace harassment of all kinds can reduce their exposure to these types of claims.
Disclaimer: Although Mel Muskovitz is an attorney because this website is read by people from all states and from countries all over the world, the advice offered is correct, but different laws may govern your approaches to human resources. Please check with an employment law attorney to ascertain your decisions, policies, and practices meet the legal standards where you live and practice.
This article contains an overview. It is not intended to be a comprehensive discussion of the subject. Further, because every set of facts and circumstances may raise different legal issues, this article is not intended to be and should not be regarded as a legal opinion.