Preventing workplace harassment
Tips for stopping workplace harassment before it begins.
Harassment is a form of unlawful employment discrimination that can occur in a variety of circumstances. Unfortunately, workplace harassment remains a significant and costly problem in today's business environment. Prevention is the best tool to eliminate harassment in the workplace — employers should clearly communicate to employees that it will not be tolerated. They can do so by providing harassment training to their employees, establishing an effective complaint or grievance process, and taking immediate and appropriate action when an employee complains.
What is harassment?
Harassment is defined under federal law as unwelcome conduct that is based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age (40 or older), disability, or genetic information. (Note that state law may protect additional groups of persons.) Such conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.
Harassment becomes unlawful where:
Enduring the offensive conduct becomes a condition of continued employment, or
The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Generally speaking, simple teasing, offhand comments, annoyances, or isolated incidents (unless extremely serious) will not rise to the level of unlawful harassment. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a "tangible employment action," such as firing, demotion, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.
Preventing and correcting harassment in the workplace
Employers can strive to promote an environment where people of all backgrounds feel comfortable, respected, and valued for their contributions. To that end, consider the following actions to prevent and correct workplace harassment:
Establish, distribute, and enforce a policy prohibiting harassment and setting out a procedure for making complaints. An employer's anti-harassment policy should make clear that the employer will not tolerate harassment or retaliation against anyone who complains of harassment or who participates in an investigation. The complaint procedure should clearly explain the process and identify accessible points of contact for an individual to report a claim of harassment, including at least one official outside of the employee's chain of command. Every employee should be provided with a copy of the policy and complaint procedure. These materials should also be posted in central locations accessible to all employees in the workplace, as well as incorporated into employee handbooks. It is a good idea to provide mandatory anti-harassment training to ensure that all employees understand their rights and responsibilities. (Note that certain states, such as California, require certain employers to provide employees in supervisor and managerial roles with particular training for sexual harassment.)
Conduct a prompt, thorough, and impartial investigation of any harassment complaint. The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information. The alleged harasser should not have any direct or indirect control over the investigation. To the extent possible, information about an allegation or investigation of harassment should be kept confidential, and shared only on a "need to know" basis. While it may be necessary to separate the complainant and the alleged harasser while the investigation is ongoing to ensure that harassment does not continue, the employer should be sure that the separation does not burden the employee who is complaining of harassment.
Take immediate measures to stop confirmed harassment and ensure it does not recur. Disciplinary measures should be proportional to the seriousness of the offense. For minor instances of harassment, counseling and an oral or written warning might be appropriate. On the other hand, suspension or discharge may be necessary in cases of severe or persistent harassment. The employer also should correct the effects of the harassment by, for example, restoring leave taken because of the harassment and expunging negative evaluations in the employee's personnel file that arose from the harassment. Due to the potential for employer liability, employers are strongly advised to consult with employment law counsel if they have questions or need to address a particular case of workplace harassment.
Taking steps to eliminate harassment in the workplace not only promotes a healthy and productive work environment, but it may also help an employer defend against liability in the event the employer is held responsible for unlawful harassment. Take the time to review and refine your company's policy and enforcement procedures, with the help of a knowledgeable employment law attorney if necessary, to make sure you know what to do should harassment occur at your company.
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