Discriminatory Workplace Harassment and Its Prevention
Scope—The subject of discriminatory workplace encompasses workplace behavior by supervisors, co-workers or third parties that is unwelcome, offensive, intimidating, humiliating or threatening to an individual or group of workers. This discussion deals with the laws prohibiting such behavior and with employer policies and practices regarding it. It does not deal with the related subject of workplace bullying that is not covered by equal employment opportunity laws. Overview Perhaps more than any other single human resource management issue, discriminatory workplace harassment and its prevention have been dominant concerns for employers since the 1980s. Harassing behavior can occur by and between co-workers, by supervisors and managers against subordinates, and by non-employees against employees. An employer found liable for any form of discriminatory harassment can face substantial penalties, including back pay, front pay and compensatory and punitive damages. Many states, and even some local jurisdictions, may impose similar, if not greater, penalties for violations. In response to the multiplicity of anti-discrimination laws, regulations and court decisions spelling out the nuances of what constitutes unlawful harassment and refining the scope of employer liability for it, organizations are advised to develop, communicate and enforce policies and practices to prevent, investigate and remedy prohibited behavior. While this discussion is limited to unlawful workplace harassment, workplace bullying that is not banned by equal employment opportunity laws is a significant employer concern and should not be ignored. See, Problem of Workplace Bullying Demands Attention, Researchers Say. The Law of Discriminatory Harassment and Prevention The legal prohibition of discriminatory workplace harassment is a relatively new phenomenon. The U.S. Supreme Court first recognized an employer’s liability for sexual harassment as a form of unlawful sex discrimination under Title VII of the Civil Rights Act of 1964in the 1986 case of Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Since then, federal courts have recognized harassing behavior based on race, religion, national origin, age, disabilityand military or veteran status as discriminatory and unlawful. In addition, many state and local fair employment practices laws prohibit harassing workplace behavior based on the same characteristics as well as additional ones. Federal law Several federal equal employment opportunity laws protect covered individuals against workplace harassment:
The U.S. Equal Employment Opportunity Commission(EEOC) administers and enforces Title VII, the ADA and the ADEA, and develops associated regulations and compliance guidelinesaddressing workplace harassment. It receives and processes charges, makes merit determinations, effects resolutions and settlements, and prosecutes cases on behalf of aggrieved individuals. After the claimant exhausts administrative remedies, then a charging party may sue in federal court. The EEOC’s web site provides a general discussion of the types of harassment under its jurisdiction as well as links to all relevant EEOC regulations and guidance. The EEOC also gathers statistics on harassment charges filed with the Commission and with the state and local fair employment practice agencies that have a work-sharing agreement with the EEOC. The U. S. Department of Labor administers and enforces USERRA and VEVRAA and develops associated regulations and compliance guidelines. State and local laws Many state and local fair employment practices laws have a broader scope than federal laws. See, Webcast: State Harassment Protections Often Broader than Federal Law. Some apply to smaller employers; others prohibit harassment based on additional characteristics, such as the victim’s:
State laws carry similar, if not greater, employer penalties for violations, and some explicitly require employers to maintain anti-harassment policies and complaint procedures and to conduct workplace anti-harassment training. See, State Requirements for Harassment Training. Harassment-related complaints may be part of common lawwrongful treatment claims, such as wrongful discharge, intentional infliction of emotional distress, invasion of privacy, assault and others. See, Touching, Sexual Comments Not Infliction of Emotional Distress. These claims may be brought independently from statutory claims and may subject the employer to additional liability and penalties, including compensatory and punitive damages. International laws Most major commercial jurisdictions in the world have adopted workplace harassment laws similar to the U.S. system of state and federal employment discrimination statutes. However, the laws of some nations go even further than U.S. law. Generally, there are three regulatory models:
Basic Concepts and Definitions In some cases, the statutes banning workplace harassment do not even contain an explicit prohibition of the behavior. Many of the key concepts and definitions are articulated in court decisions and agency regulations and guidelines. A number of these are discussed below. Unlawful harassment The concept of unlawful workplace “harassment” first emerged in the context of sexual harassment. EEOC guidelines define sexual harassment as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when: · Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; · Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or · Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.” In all types of unlawful harassment, the conduct is unwelcome, which can be a factor even in ambiguous circumstances. See, Love Contracts Get the Double Take. In addition, the conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as disciplinary action, demotion or termination. When an employee believes he or she has been a victim of unlawful harassment but no tangible employment action has occurred, it may be more difficult to determine whether the conduct is unlawful. Behavior offensive to one person may not be so to another in the same protected class. As the EEOC notes, “Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious.” See, Teasing Male Employee About Long Hair Not Sexual Harassment. Courts usually evaluate behaviors from the perspective of a reasonable person “in the victim’s shoes” while also considering subjective perceptions and any adverse effects on the employee. Quid pro quo harassment. Much of the EEOC’s definition applies specifically to “quid pro quo” sexual harassment (Latin for “this for that” or “something for something”), in which a victim—against his or her wishes—is expected to provide sexual favors in order to receive favorable workplace treatment or face unfavorable workplace treatment if he or she refuses. Hostile work environment harassment. The most prevalent unlawful workplace harassment complaint is “hostile work environment” harassment—that is, unwelcome sexual conduct that has the purpose or effect of unreasonably interfering with a person’s work performance or creating an intimidating, hostile or offensive work environment. As currently applied by the EEOC, a hostile work environment claim can be based not only upon sex, but also on race, national origin, religion, color, age or disability. Protected individuals With the possible exception of an organization’s highest-level officials, everyone is protected from illegal harassment in workplaces subject to applicable anti-discrimination laws. Similarly, everyone has the responsibility to refrain from engaging in unlawful harassment. · The EEOC expects employers to protect their employees not only from each other, but also from harassment by customers and workplace visitors, and to address harassment committed by employees against non-employees. See, Non-Employee Harassment. · Men can illegally harass other men and women can unlawfully harass other women. See, Court Looks at Same-Gender Harassment. · An employee does not have to be the intended target of harassment to show that the conduct subjected him or her to an unlawful hostile working environment. See, 11th Circuit: Offensive Language Directed at Others May Show Sexual Harassment. Employer liability for supervisor harassment The U.S. Supreme Court has established a “vicarious liability” standard, which means that employers are accountable for all harassment committed by their supervisors. See, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). · A supervisor is someone with the real or perceived authority to make or recommend tangible employment decisions affecting the employee complaining of harassment or the authority to direct that employee’s daily work activities. · Under certain circumstances, supervisors and managers may be held personally liable, along with the employer, for their unlawful actions. See, Corporate Executive Individually Liable for Sexual Harassment. · Employees bear responsibility for notifying their employers about supervisory harassment if they have access to an effective, credible internal complaint process. See, 11th Circuit: Delayed Complaint of Harassment Ruled Unreasonable. If a supervisor commits unlawful harassment—whether or not higher levels of management knew about the situation—the employer is always liable when the harassment has resulted in a “tangible employment action” such as, for example, demotion, promotion, an undesirable assignment or discharge. · Where there is no tangible employment action, the employer may be able to minimize its liability. · The employer must show that it exercised reasonable care to prevent and promptly correct any harassment, but that the employee nonetheless unreasonably failed to complain to management or to otherwise avoid harm. See, the EEOC’s Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors. Employer liability for co-worker and non-employee harassment Legal standards for employer liability for harassment by co-workers or supervisors with no authority over the complaining employee differ from those for supervisory harassment. · If the employer knew or should have known of the harassing conduct but took no action to stop or correct it, the employer may be liable. · The employer may be able to limit its liability by showing that it had no knowledge and no way of knowing of the harassment. · The employer may be able to limit liability if it can show that it was aware of the harassment and had taken immediate, appropriate corrective action. · These standards are applied by EEOC guidelines to harassment by non-employees such as customers, vendors or workplace visitors. However, the employer’s control over misconduct by these individuals would be considered in determining liability. Anti-Harassment Policies and Procedures Today, the legal and practical reality is that all employers must have a program to prevent and correct workplace harassment. While not expressly mandated by any federal law, courts, the EEOC and many state and local laws have made anti-harassment policies, complaint procedures and workforce training a necessity for employers to successfully minimize and defend against liability arising from workplace harassment. A complete anti-harassment program includes:
The HR department assures that managers correctly interpret and consistently follow the policies and serves as the alternative complaint resource for employees who prefer not to make complaints through their supervisors. HR may facilitate the investigation and resolution of complaints. Policy A clear, effective and well-communicated anti-harassment policy is the foundation for an effective prevention and remediation program, as well as the basis for a successful defense of a charge of unlawful harassment. To minimize liability for unlawful harassment, certain basic provisions must be included. As stipulated by the EEOC in its enforcement guidance on vicarious liability, an anti-harassment policy and complaint procedure at a minimum should contain all of the following:
· Assurance of confidentiality to the extent possible. · Prompt, thorough and impartial investigation. · Assurance of immediate and appropriate corrective action when harassment has occurred. The anti-harassment policy may be customized to accommodate the specific goals and culture of the workplace. Sample harassment policies and complaint procedures include the following: · Anti-Harassment Policy & Complaint Procedure · Harassment in the Workplace #1 · Sexual and Other Unlawful Harassment Policy · Sexual Harassment Formal Complaint Form · Sexual Harassment Training Acknowledgement Form Awareness Effectively communicating the policy and complaint procedures is essential to ensure effectiveness and to minimize the risk of liability should harassment occur. The employer should provide each employee with a copy of the policy and ask employees to acknowledge its receipt. A receipt is a record that the employee has received, read and understood the policy, its prohibitions, the complaint procedure, the consequences of violating the policy and the employer’s response to prevent and correct unlawful behavior. The policy and complaint procedure also may be communicated by:
Managers should be trained to notify HR immediately when issues or complaints arise, or if they observe incidents that could relate to harassment or discrimination. Formal training Effective policy implementation is directly linked to harassment prevention training for managers and employees. Moreover, the U. S. Supreme Court’s landmark decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Kolstad v. American Dental Association, 527 U.S. 526 (1999) clarified that to avoid liability for workplace harassment, employers must conduct workforce training. Mandatory training has been a standard in EEOC settlement agreements, making training the rule for HR management.
For detailed discussions of harassment prevention training, see the following: · A ‘Bifocal Approach’ to Anti-Harassment Training · Employment Law and Practices Training: No Longer the Exception—It’s the Rule · Harassment Training Goes Beyond Supervisors Complaint procedure Complaint procedures that are accessible, confidential and able to assure non-retaliation are essential components of an anti-harassment policy.
Harassment complaint processes should be consistent with or a part of other conflict resolution procedures to avoid confusion and facilitate effective response. Investigation Investigating complaints of harassment is a critical component of a prevention program and of particular concern since a flawed investigationcan result in legal exposure. However, regulatory instructions are vague, and courts take a case-by-case approach to evaluating sufficiency. Major points to consider in effective complaint investigation include:
· Confidentiality, to the extent permitted by the nature, extent and depth of the investigation, reinforced by the discrete actions of the investigator and the disclosure of related information on a need-to-know basis. See, Investigation Confidentiality Agreement.
See, Private Eye 101, Conclude and Communicateand Is There a ‘Standard of Care’ to Define a Reasonable Harassment Investigation. Avoiding retaliation Employee perceptions of the harassment prevention program have a direct effect on the success of the program. In addition to policy credibility, noted above, employees must feel confident they will not suffer retaliationfor engaging in the process.
Acknowledgement—This article was first prepared for SHRM Online by Margaret R. Bryant, a lawyer, freelance writer and editor with 25 years of experience in the field of legal and business communications. In addition to relying on her own professional expertise and research in developing this treatment, the author has incorporated existing SHRM Online content. Date—This treatment was first published in September 2008. SHRM staff will update it periodically as developments in the field warrant. For the most recent developments, see articles archived under the Harassment topic in the Employee Relations Discipline |