It takes a written policy, backed by training and education.
We spend a significant amount of our waking hours at work. For some of us, we live to work. For others, we work to live. In every instance, the workplace is a key part of our lives.
Successful employers know that a workplace that is civil and respectful to its employees is a workplace that will succeed. Productivity should be high; absences and turnover low. Simply stated, it is good business to treat employees fairly.
Unfortunately, not every business succeeds in this 100 percent of the time. A workplace can become hostile or harassing, and this may create legal issues, all of which can be minimized or eliminated.
There is a key initial distinction to be made. No workplace can be perfect, and the law does not require perfection. At any point in time, some people may be rude, uncivil or unfriendly. This will occur whenever people come together for any purpose.
The law’s definition of “hostile” or “harassing” is different. Generally speaking, harassment becomes unlawful in one of three situations. First, it can exist when having to endure offensive conduct becomes a condition of continued employment. Second, actionable harassment may arise when the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive. Finally, it may exist when an individual is harassed in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit.
As noted, one type of actionable hostility or harassment is a “hostile work environment.” Hostile environment harassment occurs when sexual or other discriminatory conduct is so severe and pervasive that it unreasonably interferes with an individual’s performance; creates an intimidating, threatening or humiliating work environment; or perpetuates a situation that affects the employee’s psychological wellbeing.
A hostile work environment, whether based on gender, age, race, national origin or disability, may be created in many ways, including but not limited to, by offensive jokes, slurs, epithets or name calling and physical assaults or threats. As noted above, petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.
What is the employer’s legal exposure? If the hostile work environment is created by co-workers or third parties (like vendors, customers, visitors), the employer has the duty to immediately and thoroughly investigate any claim and take appropriate action to end the harassment. The most appropriate response is determined on a case-by-case basis.
If the hostile work environment is created by a supervisor, the employer’s risk increases. Now the employer may be absolutely liable for the supervisor’s wrongful acts, unless the employer had in place a reporting system which the aggrieved employee failed to follow.
The employer may also be liable for a retaliation claim. An employer can be legally liable if it retaliates against, or permits others to retaliate against, an employee who complains of wrongful harassment or who aids others who do so.
What can the employer do? Starting with senior management, it must continuously express its opposition to harassment in the workplace. A written policy to this effect is a must.
The written policy must provide for a complaint procedure that encourages employees to come forward with complaints without fear of retaliation. When this occurs, each complaint must be thoroughly investigated and appropriate action taken to stop the wrongful acts.
A policy is not enough. The employer must also train and educate supervisors and employees alike as to what constitutes harassment and what must be done if it exists.
Treating employees fairly is simply the right thing to do. It is also a prudent business-based decision. Finally, as manifested in harassment type claims, the law requires it.