How to Prevent Harassment in the Workplace

Workplace Harassment

Workplace harassment is a form of employment discrimination prohibited by numerous federal laws. Workplace harassment occurs when individuals are subject to unwelcome conduct in a work environment based on their race, color, religion, sexual orientation, gender identity, national origin, older age (40 and above), disability, veteran status, genetic information, pregnancy, or because they engaged in a protected activity, such as filing a complaint or lawsuit.

Some examples of unwelcome conduct include ridiculing, mocking, insulting, name-calling, making offensive jokes, using slurs, and displaying offensive images in the workplace. Unwelcome conduct also includes threats, acts of intimidation, and physical assaults. Sexual harassment also constitutes workplace harassment. These actions create a hostile work environment for the individuals affected by them and are not tolerated under federal and many state laws.

Federal Laws that Prohibit Workplace Harassment

Federal laws that govern workplace harassment include:

Title VII of the Civil Rights Act: Prohibits harassment based on race, color, religion, sex, or national origin.
Americans with Disabilities Act (ADA): Prohibits harassment based on a physical or mental disability.
Age Discrimination in Employment Act (ADEA): Prohibits harassment based on age for individuals who are 40 or older.
Genetic Information Nondiscrimination Act (GINA): Prohibits harassment based on genetic information, including the medical history of an individual or an individual’s family member.
Equal Pay Act of 1963 (EPA): Prohibits wage discrimination based on sex, which can be a form of harassment in particular circumstances.
Occupational Safety and Health Act (OSHA): Requires employers to provide a safe workplace, free from recognized hazards, including harassment.

These laws collectively create a framework designed to protect employees from various forms of harassment in the workplace.

Employer Liability

The violation of workplace harassment laws not only has the potential to result in severe consequences for the individuals responsible for the harassment but also for the individuals’ employers. Employers can be held liable for harassment when one employee harasses another employee under several conditions, particularly if the employer knew or should have known about the harassment and failed to take appropriate action. The specifics of employer liability can vary depending on the circumstances of the harassment and the degree of action taken by the employer. As a general rule, employers are automatically liable when a supervisor’s harassment results in a tangible employment action, such as hiring, firing, promoting, demoting, or causing a significant change in an employee’s benefits. Employer liability is not as black and white in instances where a supervisor’s harassment does not result in a tangible employment action and in instances of non-supervisory employee harassment.

The Importance of Preventing Workplace Harassment

Legal Implications

When harassment amounts to the violation of one of the aforementioned federal employment laws, the legal implications for employers can be significant. First, the aforementioned harassment laws are designed to compensate victims, deter future misconduct, and promote compliance with anti-harassment standards, which may translate to employers paying significant government fines as well as damages to employees. Second, employees who experienced workplace harassment often file lawsuits against their employers seeking damages beyond those awarded in criminal cases. Some specific legal implications for employers are as follows.

Financial Penalties

Compensatory Damages: Employers may be required to compensate victims for lost wages, emotional distress, medical expenses, and other costs resulting from harassment.
Punitive Damages: In cases of particularly egregious conduct, courts may impose punitive damages to punish the employer and deter similar behavior in the future.
Back Pay and Front Pay: Victims may be awarded back pay for lost earnings and front pay for future lost wages if reinstatement is not feasible. Legal Costs
Attorney’s Fees: Employers found guilty of harassment may be required to pay the victim’s attorney’s fees and court costs, adding to the financial burden.
Settlement Costs: Many harassment cases are settled out of court, which can involve substantial settlement payments to the victim.

Corrective Actions

Policy Changes: Employers may be ordered to revise their harassment policies and implement new procedures to prevent future incidents.
Training Programs: Courts can mandate that employers provide anti-harassment training for all employees, including specialized training for supervisors and managers.
Monitoring and Reporting: Employers may be subject to ongoing monitoring and reporting requirements to ensure compliance with anti-harassment laws

Reputational Damage

When employers are accused, or convicted, of workplace harassment, the legal proceedings and settlements associated with the charge can become public. Public knowledge of workplace harassment can be damaging to an employer’s reputation and make it difficult to attract and retain employees. Negative publicity from harassment cases can also harm the employer’s brand and customer relationships, leading to a loss of business and revenue.

Impact on Workplace Culture and Productivity

Workplace harassment can have devastating effects on the overall culture and productivity of an organization. In particular, workplace harassment can negatively impact:

Employee Morale: Harassment creates a toxic work environment where employees feel unsafe and unsupported. This leads to decreased job satisfaction and a lack of trust in the organization.
Productivity: A hostile work environment reduces employee productivity. When employees are distracted by harassment going on around them, they are less likely to focus on their tasks and perform their job functions to the best of their abilities.
Turnover and Absenteeism: High levels of harassment can lead to increased employee turnover, as workers leave to find safer and more supportive workplaces. The cost of replacing employees can be substantial, including expenses related to recruiting, hiring, and training new staff. Additionally, harassment often leads to higher rates of absenteeism, as affected employees may take more paid and unpaid leave to avoid hostile situations.
Mental and Physical Health: Harassment can have serious mental and physical health consequences for employees. For example, harassment can cause stress, anxiety, depression, and other health issues, leading to increased healthcare costs and further absenteeism.
Team Cohesion: A work environment marred by harassment undermines team cohesion and collaboration. Employees may become isolated and less willing to communicate or work together, impacting the overall efficiency and effectiveness of the team

Avoiding Workplace Harassment Liability as an Employer

Creating a Comprehensive Anti-Harassment Policy

Implementing an effective anti-harassment policy is the foundation for preventing workplace harassment and ensuring a safe and respectful environment for all employees. A well-crafted policy should include the following elements:

Clear and Understandable Language: The policy should be written in clear, straightforward language that is easy for all employees to understand. Avoid legal jargon and complex terms to ensure everyone can comprehend the policy.
Regular Communication: Communicate the policy regularly to all employees through various channels, such as onboarding sessions, staff meetings, email updates, and the company intranet. Ensure that the policy is accessible at all times.
Inclusion for All Employees: Include provisions for employees with limited literacy skills or limited proficiency in English. Consider providing numerous translations of the policy and offering assistance to those who may need help understanding it.
Multiple Reporting Avenues: Provide multiple avenues for reporting harassment to ensure employees do not have to report harassment directly to their harasser or someone their harasser has a close relationship with. Some viable reporting avenues include reporting directly to supervisors, human resources personnel, or designated complaint officers. Another valuable avenue is the creation and utilization of an anonymous reporting hotline.
Coverage of All Parties: Ensure that the policy covers harassment by employees at all levels, including supervisors, managers, and executives. It should also address harassment by clients, customers, contractors, and other third parties who interact with employees.
Zero Tolerance Statement: Clearly state that the organization has zero tolerance for harassment of any kind. Outline the consequences for violating the policy, which could range from warnings and mandatory training to termination of employment.

Implementing Training Programs

Effective training is vital to the success of any anti-harassment policy. Training programs should educate employees about the policy’s provisions, including their rights and responsibilities stemming from it. Key components of effective training include:

Policy Explanation: Explain the anti-harassment policy in detail, including the types of behavior that constitute harassment and the steps employees should take if they experience or witness harassment.
Examples of Prohibited Conduct: Provide specific examples of prohibited conduct to help employees recognize harassment. These examples should be relevant to the workplace and workforce.
Complaint Process: Describe the complaint process, including how to report harassment, what to expect during the investigation, and the protections awarded to reporting employees against retaliation and breaches of confidentiality.
Rights and Responsibilities: Inform employees of their rights under the law and the organization's policy. Emphasize the responsibilities of supervisors and managers in preventing and addressing harassment.
Tailored and Regular Training: Tailor the training to the specific workplace and workforce, considering factors such as the industry standards, job roles, and diversity of the employees. Provide training regularly to reinforce the policy and keep employees informed of any updates.

Establishing Reporting Procedures

A strong reporting process is crucial to ensure that an employer is handling harassment complaints effectively. These procedures should include:

Accessible Complaint System: Ensure the complaint system is fully resourced, easily accessible to all employees, and includes multiple reporting avenues. Employees should feel confident that their complaints will be taken seriously and addressed promptly.
Anonymity: Include an avenue of reporting that allows the employee submitting the complaint to remain anonymous.
Regular System Testing: Regularly test the complaint system to ensure it functions effectively. This may involve conducting mock complaints to evaluate the system's responsiveness and efficiency.
Encourage Early Reporting: Encourage employees to report potentially problematic conduct early, even if it does not yet rise to the level of harassment. Early intervention can prevent escalation and resolve issues before they become more serious.

Establishing Investigation Procedures for Responding to Reports

Employers must implement thorough and effective investigation procedures to respond to workplace harassment claims. These procedures ensure that complaints are handled fairly, promptly, and consistently. Here are the key steps employers should follow:

Acknowledge Receipt: Promptly acknowledge receipt of the harassment complaint to the complainant.
Implement Interim Measures: If necessary, take immediate steps to protect the complainant and prevent further harassment during the investigation, such as temporarily reassigning the alleged harasser or adjusting work schedules.
Assign a Qualified Investigator: Assign a neutral, trained investigator to handle the complaint. This person should have experience in conducting workplace investigations and should not have any conflicts of interest.
Maintain Confidentiality: Ensure the investigator understands the importance of maintaining confidentiality throughout the investigation process to protect the privacy of all parties involved.
Develop a Plan: Outline the scope and timeline of the investigation. Identify key individuals to interview and determine what evidence needs to be collected.
Document Everything: Maintain detailed records of all steps taken during the investigation, including transcriptions of interviews, communications with involved parties, and all evidence gathered.
Interview the Complainant: If the complainant chooses to identify themself, start by interviewing them to gather detailed information about the alleged harassment. Ask open-ended questions and encourage the complainant to provide as much detail as possible.
Interview the Alleged Harasser: Interview the alleged harasser to hear their side of the story. Ensure the interview is conducted fairly and without bias.
Interview Witnesses: Interview any witnesses who may have observed the harassment or have relevant information. Ask them to provide any evidence they may have, such as emails, messages, or other documents.
Collect Documentation: Gather all relevant documents, emails, messages, and any other evidence that supports or refutes the claims.
Review Company Policies: Examine the company’s anti-harassment policies and training records to determine if proper procedures were followed.
Assess Credibility: Evaluate the credibility of all parties involved based on the consistency and plausibility of their statements, as well as any corroborating or contradictory evidence.
Determine Facts: Based on the evidence and interviews, determine the facts of the case. Identify whether the behavior constitutes harassment according to company policy and applicable laws.
Report Findings: Prepare a detailed report of the findings, including a summary of the evidence, conclusions, and recommendations for action.
Decide on Disciplinary Action: If harassment is confirmed, decide on appropriate disciplinary action against the harasser.
Communicate Outcomes: Inform the complainant and the alleged harasser of the investigation's outcome and any actions taken. Ensure that this communication is done with sensitivity and respect for privacy.
Monitor the Situation: Follow up with the complainant to ensure that the harassment has stopped and that there are no signs of retaliation. Check in periodically to confirm the work environment remains safe and respectful.
Review Policies and Training: Use the findings from the investigation to review and, if necessary, update company policies and training programs to prevent future incidents.

Taking Corrective Action

When an employer is made aware that harassment is taking place in the workplace, it is vital that they take corrective action quickly and effectively. This includes:

Prompt and Proportionate Discipline: Discipline employees engaging in workplace harassment in a prompt and consistent manner that is proportionate to the severity of the harassment. Discipline can range from counseling and training to suspension or termination of employment.
Documentation: Document all steps taken by the employer in response to harassment complaints to ensure that the protocol prescribed by the employer’s aunty-harassment policy was followed. This includes maintaining records of the complaint, investigation, disciplinary actions, and follow-up measures to prevent recurrence.

Conn Maciel Carey LLP

At Conn Maciel Carey LLP, we specialize in helping employers achieve full compliance with workplace harassment laws through expert legal guidance and comprehensive support. Our services include drafting and reviewing anti-harassment policies to ensure they meet all legal standards and best practices. We offer tailored training programs for your employees and management, to ensure that they are educated on recognizing, preventing, and responding to harassment.

Our Labor and Employment Practice Group also assists in establishing effective reporting and investigation procedures, ensuring that complaints are addressed promptly and appropriately. In the event of a harassment claim, Conn Maciel Carey LLP provides robust representation to mitigate legal risks and navigate the complexities of litigation. Partnering with us means proactively creating a safe and compliant workplace, minimizing the risk of harassment incidents and legal repercussions. Contact us today at (202) 715-6244.