Defining, Mitigating, and Reducing Harassment in the Workplace

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You do not have to look very long or hard lately to find cases of harassment in the workplace. Employees are increasingly coming forward to report harassment by a manager, employee, faculty member, student, or even a customer. Surprising to many is the fact that the number of charges of alleged harassment filed with the Equal Employment Opportunity Commission (EEOC) has increased each year over the last three fiscal years (FY) from 26,820 in FY 2014, to 27,893 in FY 2015, to 28,216 in FY 2016. Keep in mind that these totals do not include reports filed with state or local Fair Employment Practices Agencies.

To understand what is involved in such cases, one must first be aware of what the federal government defines as “harassment.”

Definition
If an organization employs 15 or more people, Title VII of the Civil Rights Act and the Americans with Disabilities Act provide coverage for employees. For companies employing 20 or more people, the Age Discrimination in Employment Act also provides coverage. According to the EEOC, harassment is defined as follows:

Unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

If an organization is a covered federal contractor or subcontractor required to abide by regulations under the jurisdiction of the Office of Federal Contract Compliance Programs (OFCCP), then sexual orientation, gender identity, and veteran status are classifications that are also protected. Unlawful conduct could take the form of offensive jokes, slurs, name-calling, physical threats, insults, or even the use of offensive pictures or objects.

Cases and Settlements
B&H Foto was ordered to pay $3.2 million in back pay and interest in a case that was reviewed by the OFCCP in August 2017. The OFCCP not only alleged that the company was discriminating against female, African American, and Asian job seekers and employees in hiring, compensation, and promotion decisions, but that B&H Foto also gave these groups unequal access to the company’s restroom facilities and routinely subjected Hispanic workers to harassing conduct.

Another August 2017 settlement involved Ford Motor Company, which was investigated by the EEOC. Ford agreed to pay up to $10.125 million to settle a case involving a group of individuals at two of the company’s Chicago area facilities. The EEOC found that the organization subjected female and African American employees to sexual and racial harassment.

In August 2017, the EEOC sued Life University after learning that the chiropractic college treated African Americans differently than other employees because of their race. This treatment included harsher discipline compared with that of whites who committed similar offenses. When the black employees complained, they were subsequently fired.

Higher education has also had to pay out some hefty settlements in the past due to harassment. In 2010, Lafayette College agreed to pay $1 million to settle a sexual harassment suit, which came about after a supervisor repeatedly groped and forcibly kissed women, as well as emailed them pornographic materials.

In 2011, Anthem College Online was ordered by the EEOC to pay $200,000 as part of a sexual harassment settlement after female employees were harassed by three supervisors who engaged in unwanted sexual touching and solicitations for sex.

Harassment Policy Tips
The primary goal and best practice for all organizations is to have an environment that is respectful and does not tolerate discrimination or harassment. Taking preventive measures, such as implementing anti-harassment policies, disseminating an effective complaint process, and regularly providing anti-harassment and unconscious bias training to all employees, is key to creating a respectful and engaging workplace. The EEOC offers the following tips for developing an effective anti-harassment policy.

● Clearly define what is considered harassment, and make clear that it is illegal and will not be tolerated. The EEOC recommends that examples of conduct that is prohibited be listed.

● Explain the process for reporting harassment. The EEOC recommends that at least one person who is outside an employee’s chain of command be designated to receive complaints of harassment.

● State that, to the greatest extent possible, the confidentiality of employees who report harassment or assist in an investigation will be protected.

● Explain that employees will not be subject to punishment or adverse action or treatment for reporting harassment or assisting in an investigation.

● Outline the consequences of violating the harassment policy, which may include termination.

Best Practices for Prevention
Having an anti-harassment policy helps mitigate incidents, but to reduce the likelihood of harassment occurring in the workplace, best practices such as these should be implemented:

● Create anti-harassment policies and disseminate them via the employee handbook, company intranet, email, or mailings. In addition, ensure that policies are posted in cafeterias and other common areas in facilities.

● Set examples from the top levels of the organization of respectful behavior toward all individuals. Embedding into the culture that harassment will not be tolerated and that the organization will be a workplace that is respectful of all employees is the responsibility of senior leaders.

● Provide regular training regarding equal opportunity compliance, harassment, inclusion, and respect. All members of the leadership team and their respective units must take part in regular training to emphasize the importance of policies and define the actions that are considered harassment.

● Hold managers accountable for effectively handling any inappropriate behavior that they witness by others. Management must clearly demonstrate that there will be no retaliation against employees who file harassment claims.

● Have specific consequences for unwelcome behavior in your organization. Detailing in your human resource policies the specific consequences of harassing behavior is necessary to ensure that discipline is consistently enforced.

Harassment in the workplace is not only illegal — and can be financially costly to an organization — but it can also affect the morale of employees, causing them to either leave or be less productive. Organizations should take steps to ensure that their workplace is free of offensive behaviors by being proactive when it comes to providing training on anti-harassment policies for all employees.

For a company to be competitive in the global market, its workforce must be highly engaged, and the removal of the fear of harassment is a critical step in developing this type of culture. An organization must have preventive steps in place, including producing an anti-harassment policy, disseminating it to all employees, and creating an environment where all people feel welcome and respected.●

Julia Méndez, SHRM-CP, PHR, CAAP, CDP, CELS, is principal business consultant in the Workforce Compliance and Diversity Solutions Division for PeopleFluent Research Institute. She is also a member of the INSIGHT Into Diversity Editorial Board.