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Harassment Prevention

By now, every company should recognize the importance of preventing workplace harassment. The statistics show, however, that despite some progress, the problem persists. With regard to sexual harassment, the trend is that fewer charges are being filed. Between 2001 and 2006, the number of sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC) dropped every year, from 15,475 in 2001 to 12,025 in 2006—a 22 percent decline. But the trend for harassment overall is in the opposite direction. The number of harassment charges filed with the EEOC in 2007 hit 27,000—greater than in any of the previous 10 years.

Many companies have yet to get the message that failing to develop and enforce a harassment prevention policy can be costly. In 2007, companies paid more than $65 million in prelitigation EEOC settlements alone. As for what it can cost per company, consider these two examples:

In the first, a fast food restaurant franchisee with locations in Arizona and California paid $550,000 to settle a lawsuit brought on behalf of teenage workers alleging sexual harassment by a middle-aged male supervisor. The EEOC had argued that the employer knew of the manager’s conduct, which included unwanted touching and lewd comments, but failed to take appropriate action.

In the second case, a Chicago trucking company paid $1.1 million in damages arising from charges of sexual harassment. That situation involved three female sales representatives who were subjected to unwelcome groping, lewd sexual language, sexual propositions, and pornography. At trial, the EEOC presented evidence of the company’s permissive corporate culture. Strippers in revealing attire were positioned around the golf course at a company-sponsored golf outing for customers, for example.

Every organization needs a policy for minimizing exposure to this type of legal charge. By understanding what constitutes workplace harassment, how to prevent it, and how to respond when a complaint arises, companies can significantly reduce the chances of being charged or of incurring liability when allegations are brought.

Types of Harassment

Harassment is a form of workplace discrimination and harassment charges can involve various types of parties and various types of activity. For example, while most claims still come from female workers, the number of sexual harassment charges filed by men has steadily increased. In 1992, just 9.1 percent of the sexual harassment charges brought before the EEOC were made by men. By 2007, this figure had grown to 16 percent.

Harassment can also encompass far more than unwanted male-female-related conduct. As noted, while the number of sexual harassment charges dropped significantly between 2001 and 2006, the total number of harassment charges did not. In other words, other forms of harassment have become growing concerns. In 2001, sexual harassment charges made up 63 percent of all harassment charges filed, while in 2006, sexual harassment charges made up only 52 percent of all harassment charges filed. This trend continued in 2007, when sexual harassment charges made up only 46 percent of all harassment charges. Harassment allegations based on protected characteristics other than sex—such as race, national origin, age, religion, and disability—have increased.

Identifying Harassment

The first step employers must take to protect themselves and their employees from workplace harassment is to identify what constitutes workplace harassment.

Workplace harassment is a form of employment discrimination. Harassment based on race, color, physical or mental disability, religion, age, national origin, or sex is prohibited under federal law. In addition, state laws prohibit harassment based on other protected classes, including marital or familial status and sexual orientation.

Sexual harassment. Harassment can take on different forms. Sexual harassment involves unwelcome sexual advances, requests for sexual favors, and other gender-based verbal or physical conduct, where submission to or tolerance of such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.

Importantly, sexual harassment does not require sexual attraction or desire. Treating employees differently because they are male or because they are female satisfies the “gender-based” requirement even when no sexual attraction exists. For example, when two male factory workers engage in horseplay that ends in one of the employees being “de-pantsed” and the perpetrator admits that he would not have done that to a female coworker, gender-based conduct has occurred, and a sexual harassment claim may result.

Sexual harassment takes two forms. The first form, called quid pro quo harassment, exists when submission to or rejection of the conduct is used as the basis for employment decisions affecting that individual. Quid pro quo harassment can only be perpetrated by someone with supervisory authority, making this type of harassment particularly troublesome.

One example of quid pro quo harassment is where a supervisor tells a staff member that she will receive a raise if she puts on a slinky black dress and accompanies him to dinner. Quid pro quo harassment is straightforward: “I will give you this if you give me that.”

The second, and more common, form is hostile environment harassment. In this type, the unlawful conduct interferes with an individual’s performance or creates an intimidating, hostile, or offensive environment. Hostile work environment is more nebulous than quid pro quo harassment. The harasser doesn’t offer or demand anything.

A hostile work environment exists when an employee is subjected to severe or pervasive conduct directed at him or her because of sex or gender. This conduct creates a hostile work environment. To meet that definition, it must be unwelcome, alter the employee’s work conditions, and create an abusive environment. Such behavior runs the gamut from inappropriate e-mail to sexual contact and includes “dirty” remarks, pornographic materials, leering, and repeated requests for dates.

Under the totality-of-circumstances test used by courts, a single incident of harassment, if sufficiently severe, could give rise to a viable harassment claim. However, a continuous pattern of less severe incidents of harassing behavior—such as nicknames, e-mail, or leering—may also result in legal liability when the work environment is permeated by inappropriate behavior.

Generally, the required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. Under this approach, even seemingly innocuous behavior can constitute harassment if repeated frequently. In recent years, harassment complaints involving egregious conduct, such as sexual assault or groping, appear less common than complaints involving sexual e-mails and conversations.

Harassment complaints often arise when a consensual workplace relationship turns sour. While the employer may have been unaware of such a relationship, its existence becomes clear after employees’ phone records and e-mail exchanges are examined.

Other forms. Harassment directed at an employee because of his or her race, color, national origin, religion, age, physical or mental disability, or any other basis protected by applicable law is illegal and may result in a lawsuit. These other forms of harassment can be based on behavior similar to sexual harassment and can include verbal conduct such as threats, epithets, derogatory comments, or slurs; visual conduct, such as displaying derogatory posters, photographs, cartoons, or drawings, and physical conduct, such as gestures, assault, unwanted touching, or blocking normal movement.

Too often, employers and employees misunderstand the protections provided by antidiscrimination laws as extending to only minority employees. Harassment directed at any employee because of race or national origin, regardless of whether that race or national origin is considered a minority, is prohibited. Thus, it is just as inappropriate to make jokes, comments, or remarks about drinking engaged in by individuals of Irish national origin or the intelligence of individuals with Polish ancestry as it is to make such comments, remarks, or jokes about Hispanic or African-American employees.

Joking behavior between employees on friendly terms with one another may also create legal issues for the employer. Employers should, therefore, have policies against this type of behavior and take appropriate disciplinary action even if the employee at whom the conduct is directed does not take issue with it. This approach minimizes the potential for legal claims that may arise when formerly friendly employees have a falling out, and it prevents claims from other employees in the workplace who overhear such comments and take offense.

Avoiding Liability

The first step in avoiding liability is to have a comprehensive harassment prevention, detection, reporting, and response policy. The next step is to ensure that employees are aware of the policy. This step entails having staff sign the policy, conducting periodic harassment-prevention training, and posting the policy in prominent locations.

The company must also ensure that managers are trained in how to implement and enforce the policy. Most importantly, management must ensure that every aspect of the policy is enforced.

Ultimately, to defend against a claim of sexual or other workplace harassment, should one arise, an employer must demonstrate that it had an accessible and effective policy for reporting and resolving harassment complaints, that employees knew of it, that it was consistently enforced, and that the employee filing the claim unreasonably failed to take advantage of the complaint procedure.

Policies. In developing or revising a workplace-harassment complaint policy, employers must explain what type of conduct is prohibited, who is subject to the policy, who should report harassment, who should receive the harassment complaints, what is involved in the investigation process, and what constitutes retaliation.

Prohibited conduct. Many employers make the mistake of drafting their policy too narrowly by prohibiting only sexual harassment. An effective policy should state the employer’s prohibition of workplace harassment based on any protected characteristic, including sex, race, national origin, religion, age, or disability, and any other basis protected by applicable law. The policy should also describe and provide examples of the type of conduct prohibited, including verbal, visual, and physical conduct.

Affected parties. The policy should apply to anyone affiliated with the company, paid by it, or on its property; thus, it will cover not only activity between and among employees but also conduct of third parties, such as independent contractors. With regard to clients, customers, and visitors, the policy should inform employees of their right not to be subjected to harassment by these groups. It should make clear that the company will not tolerate harassment by customers and it should encourage staff to file complaints if such harassment occurs.

Reporting. The policy should set out how incidents can be reported. Just as importantly, it should require that incidents be reported by all employees who have witnessed or otherwise have knowledge of conduct that may violate the policy. Too often, employees and supervisors take the “it’s not my job” approach when harassment is observed. The policy should make it clear that eliminating harassment in the workplace is the responsibility of all employees.

An effective harassment complaint procedure designates several individuals to whom employees may bring complaints. This ensures that no matter who the harasser is, or is friends with, the employee has someone to go to with complaints. For example, policies should allow harassment victims to complain not only to direct supervisors or managers but also to HR representatives and senior management.

Complaint process. The policy should generally describe the process the employer will follow when it receives a complaint, including how the investigation will proceed, what might happen if the investigation substantiates the alleged conduct, and the potential discipline that may be imposed. However, the policy should not provide specific time frames (except if required by applicable law) or other specific details, such as identifying specifically who will conduct the investigation. These specifics may unnecessarily restrict the employer.

Retaliation. In a separately headed section within the harassment policy, retaliation should be defined and expressly prohibited (more on this later).

Fraternization. Given the potential liability associated with workplace relationships, even those that are consensual, employers should consider adopting an anti-fraternization policy. Such policies may prohibit amorous relationships between supervisors and subordinates or even between employees. Alternatively, these policies may simply require that any such relationships be disclosed. Enacting such a policy puts employees on notice of the employer’s expectations concerning amorous relationships and helps prevent claims by employees that they were coerced into a relationship with a supervisor or coworker.

Technology. As use of technological resources is frequently at the center of workplace harassment claims, it is important that employers adopt policies concerning use of these resources. Such policies should clearly define acceptable and unacceptable use and put employees on notice that the technological resources and data stored on or transmitted across those resources are company property. In addition, these policies should clearly indicate that the employer retains the right to access, intercept, or monitor employee use of its technological resources, and that the employee’s use of these resources constitutes consent to employer access.

Workplace harassment policies may encourage, but should not require, a harassment victim to confront the alleged harasser to let him or her know that the conduct is unwelcome. While doing so may avoid misunderstanding from turning into a harassment complaint, the law does not permit an employer to require a victim to take this course of action.

Dissemination. Once a policy is drafted, reviewed by legal counsel, and adopted, all employees must be required to read the policy and acknowledge that they understand it. Employers should incorporate their harassment complaint procedures into the employee handbook. It is also advisable to distribute the policy to employees on an annual or semiannual basis.

Employers should also require that employees sign and date an acknowledgement of receipt of the document every time the policy is distributed. This acknowledgement should clearly state that the employee understands the requirement to read the policy and raise any questions. This practice will prevent the employee from later claiming ignorance of the antiharassment policy.

Training. The mere existence of a harassment policy will not establish that an employer has exercised reasonable care to prevent harassment. As one federal court specifically pointed out, “[h]aving written antidiscrimination policies is not enough to avoid punitive damages; rather, an employer must also show that efforts have been made to implement its antidiscrimination policy, through education of its employees and active enforcement of its mandate.” (Neal v. Manpower International, Inc., U.S. District Court for the Northern District of Florida, 2001)

Antiharassment awareness training should be carried out for all employees at orientation and refresher information should be provided at least annually. This regular reinforcement of antiharassment policies increases the likelihood that employees will report inappropriate conduct before it reaches the level of an actionable hostile work environment.

Harassment-prevention training should educate employees on what constitutes harassment by laying out the key elements of the policy. The factors that should be discussed include the obligation of all employees to report harassment that they experience or witness, the options for making such reports, and the process the employer will follow in response to a harassment complaint. The presentation should include an explanation of what constitutes retaliation.

Training should address joking or kidding behavior as well as conduct outside the workplace that may create a hostile work environment. Employees should be invited to ask questions to ensure that there is no misunderstanding concerning the employer’s expectations and each employee’s responsibilities.

For managers, supervisors, and others in authority, specific training must be provided to ensure that these individuals understand their role in carrying out the company’s harassment prevention, detection, and response policies.

The company should consider developing additional awareness training for other individuals who have regular contact with employees and have some relationship with the employer, such as board members or contractors, for example.

Complaint response. To successfully defend against any claim that arises, employers must be able to demonstrate that they consistently follow their workplace harassment policy. Companies can do so by taking every claim seriously and promptly investigating all allegations of workplace harassment. They must also take appropriate remedial measures to address prohibited conduct whenever the investigation finds evidence of it.

To ensure that an investigation can be initiated quickly, the company should have procedural plans in place as part of the harassment prevention policy. If the investigation is to be carried out by in-house personnel, the company must ensure that those individuals have the proper training to fulfill that function.

In reviewing an employer’s response to a complaint of workplace harassment, juries look not only for promptness but also fairness and impartiality. In addition, juries expect that investigations will be thorough. That means the investigation must examine all relevant documents and interview all relevant parties. Employers must also act to protect the dignity of all those involved, including the accused, the accuser, and witnesses.

In conducting investigations, employers should generally first take the complaint from the alleged victim and interview the accused, allowing the alleged wrongdoer to give his or her own version of the events. Investigators should then interview all of the witnesses and potential witnesses and review relevant work records.

After gathering as much information as possible, the investigator should make a determination about what occurred, and make a recommendation to management, concerning what, if any, remedial action is appropriate. That outcome should be communicated to the complaining party and to the accused.

At every stage of the investigation, the investigator should make clear to all parties—including the victim, the alleged harasser, and any witnesses—that reprisals will not be tolerated. Each stage of the investigation must be thoroughly documented. The company should keep in mind the possibility that these records will be sought in the future as a part of discovery procedures if the accuser chooses to file a lawsuit.

Retaliation Claims

In addition to harassment claims, employers often face charges of retaliation for their treatment of employees who complain of harassment. Retaliation claims have steadily increased over the past few years, due in large part to the continual evolution of this area of law. Since 1992, the number of retaliation claims has doubled (racial is first). Retaliation is technically not harassment; it falls under the broader legal category of discrimination. Discrimination charges in 2007 totaled 82,792; of those, 30,510 were for racial discrimination; 26,663 were for retaliation; and 24,826 were for sexual discrimination. (It should be noted that not all sex discrimination is considered harassment, so within discrimination’s subcategory of harassment, which is the primary focus of this article, sexual harassment charges are, as noted, about 16,000.)

Retaliation is prohibited under federal and state laws. While it has always been clear that an employer may not discharge, demote, or deny a promotion to a person based on protected activity, such as filing a harassment complaint, it was less clear whether an employer could retaliate by taking lesser employer actions, such as assigning less favorable job duties. In 2006, the U.S. Supreme Court clarified this issue and in doing so opened the door to a significant increase in retaliation claims.

In the case, Burlington Northern and Santa Fe Railway Company v. White, the Court held that a plaintiff alleging retaliation under Title VII of the Civil Rights Act may state a formal claim even if the alleged retaliatory action did not affect the terms and conditions of the plaintiff's employment. Under Burlington Northern, retaliation is no longer limited to actions that affect terms and conditions of employment or are workplace related. As a result of that decision, employers may now be held liable for retaliation if they modify an employee’s duties or for actions outside the employment context, such as filing a criminal complaint against the employee.

An employee only has to show that the employer’s retaliation was serious enough that it would have dissuaded a reasonable employee from ever making a complaint. This decision made it easier to file retaliation claims, and plaintiffs’ attorneys took notice.

The Burlington Northern decision not only increased the number of retaliation claims, but it also changed the outcome in cases that were under consideration when that decision came down. For instance, in Kessler v. Westchester City Department of Social Services (U.S. Court of Appeals for the Second Circuit, 2006), Kessler was the assistant commissioner of social services for the city; he worked in the main office, supervised approximately 100 employees, and had department-wide responsibilities, including negotiating contracts and developing programs.

After Kessler filed an initial agency charge alleging race, gender, religion, and age discrimination, he was transferred to an outlying office where he had no supervisory or departmental responsibilities. He was assigned menial tasks. Nonetheless, his title, job grade, salary, benefits, and hours remained the same.

The case was initially dismissed because the plaintiff failed to show that he suffered an adverse employment action, as he did not suffer any loss of title, wages, or benefits. On appeal, the appellate court, relying on Burlington Northern, reversed the decision, concluding that the transfer prevented the employee from performing broad discretionary and managerial functions, removed employees that reported to him, and forced the employee to do work normally performed by clerical personnel. The court decided that whether these changes constituted an adverse employment action was an issue of material fact best left to a jury.

Although the Burlington Northern decision has made it easier for employees charging harassment to file retaliation claims, there are still a number of steps employers can take to minimize the risk of retaliation liability. Employers should review their antidiscrimination and antiharassment policies to ensure that they strictly prohibit any type of retaliation against an employee who files a complaint of harassment or discrimination or participates in the investigation of such complaints. Employers should also require that all employees get the policy and sign an acknowledgment of receipt.

As part of periodic workplace harassment-prevention training, employers should ensure that all employees are aware of their obligation not to retaliate against an employee who files a complaint or participates in an investigation of such a complaint.

There may be cases where unrelated and legitimate adverse action is warranted against employees who have complained about discrimination. In those cases, supervisors should consult with human resources and legal counsel to ensure that such actions are firmly grounded on a legitimate business reason. Employers should document the nonretaliatory reasons for taking such action against an employee involved in harassment charges. The company should retain all relevant documents, including any e-mails, that reflect the sequence of events.

Even though employers cannot entirely shield themselves from harassment claims, they can greatly reduce their exposure by having a good policy, conducting proper training, and handling all complaints promptly, thoroughly, consistently, and fairly.

John M. Bagyi is a partner at Bond, Schoeneck & King, PLLC. Matthew G. Boyd is an associate with the firm. The authors counsel and represent companies in labor and employment-related contexts. The information contained in this column is intended as general background information and is not intended to be a substitute for professional counseling or legal advice