Workplace Harassment:  What It Is & How You Prevent It

By:John M. Bagyi, Esq., SPHR

As one of the most common forms of employment discrimination, employers need to be aware of what constitutes workplace harassment, how it can be prevented, and how to respond when it arises in the workplace. This article will provide information necessary to tackle this complex issue.

What Is Workplace Harassment?

Workplace harassment is a form of employment discrimination. Harassment based upon race, color, physical or mental disability, religion, age, national origin, or sex is prohibited under federal law.  In addition, state laws prohibit harassment based on other protected classes including marital or familial status and sexual orientation.
Sexual harassment consists of unwelcome sexual advances, requests for sexual favors, and other gender-based verbal or physical conduct, where submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment insofar as:

• submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that individual (quid pro quo); or
• such conduct has the purpose or effect of interfering with an individual’s performance or creating an intimidating, hostile, or offensive environment (hostile environment)

“Quid pro quo” is Latin for “this for that” and occurs when an individual misuses his/her authority in the workplace.  For example, quid pro quo harassment would include a supervisor telling a staff member that she will receive a raise if she puts on a slinky black dress and accompanies him to dinner. 
A hostile work environment exists when an employee is subject to severe or pervasive discriminatory conduct “because of” sex/gender, which was/is unwelcome, and which alters the work conditions of the employee and creates an abusive environment.  Conduct that may create a hostile work environment includes:

• repeated request for dates
• obscene or “dirty” remarks, sexually explicit or lewd jokes
• sexual innuendo
• physically explicit “compliments”
• offensive gestures
• pornographic materials, obscene cartoons
• leering
• touching, hugging, and kissing
• talking about the sexual activities or desires of the alleged harasser, harassee or other person
• sexual advances
• sexually oriented e-mail messages, screen-savers, and websites

It is important to recognize that workplace harassment includes other forms of harassment, and is not limited to harassment based on sex/gender.  Other forms of unlawful workplace harassment include harassment on the basis of race, color, national origin, religion, age, physical or mental disability, or any other basis prohibited by applicable state law.  This would include conduct similar to sexual harassment, such as:

• verbal conduct such as threats, epithets, derogatory comments, or slurs;
• visual conduct such as derogatory posters, photographs, cartoons, drawings, or gestures; and
• physical conduct such as assault, unwanted touching, or blocking normal movement.

How Do Employers Avoid Legal Liability For Workplace Harassment?

To defend against a claim of sexual or other forms of harassment, an employer must be able to demonstrate: (1) the employer had an accessible and effective policy for reporting and resolving complaints of sexual harassment; and (2) the employee unreasonably failed to take advantage of the employer's complaint procedures.  To do this, an employer must be able to establish that it exercised reasonable care to prevent unlawful harassment.
In other words, the employer must be able to show that it: (1) had a harassment complaint policy; (2) distributed the policy to employees, posted it in the workplace, and/or took other steps to inform employees about the policy; (3) trained managers, supervisors, and ideally all employees on what constitutes workplace harassment and the available complaint procedure; and (4) adhered to its policy.  
In developing or revising a workplace harassment complaint policy, employers must consider the following issues:

• What type of conduct does the policy prohibit?   Many employers make the mistake of limiting the conduct prohibited by their workplace harassment procedure to acts of sexual harassment.  An effective policy should state that the employer prohibits workplace harassment based on any protected characteristic, including sex, race, national origin, religion, age or disability.  Moreover, the policy should describe and provide examples of the type of conduct prohibited, including verbal, visual and physical conduct.
• What individuals are subject to the policy's provisions?  Although employees will obviously be covered by the policy, employers should also include clients, customers, visitors and independent contractors as groups of individuals who are subject to the policy.  The policy should require employees to report harassing acts by such individuals and, conversely, such individuals' complaints about an employee should be investigated.
• What individuals should the policy designate to receive an employee's harassment complaint?  An effective harassment complaint procedure should designate several individuals to whom employees may bring complaints.  This assures that no matter who the harasser is, or who he/she is friends with, the employee has someone to whom he/she can complain.
• What happens once a complaint is made?  The policy should generally describe the process the employer will follow upon receipt of a complaint.  For example, the policy should state that an investigation will commence as soon as possible, and will include interviews with the accused and any witnesses.  In addition, the policy should provide that, if the investigation substantiates the alleged conduct, prompt remedial action will result, including, where warranted, discipline up to and including termination. The policy should also apprise employees that any retaliation for making a complaint or for participating in an investigation is strictly prohibited.

Once a policy is revised, adopted and reviewed by legal counsel, all employees need to see the policy, read the policy, and understand the policy.  Employers should incorporate their harassment complaint procedure into their employee handbook, and consider distributing the policy to employees on an annual or semi-annual basis.  Employers should require employees to sign and date an acknowledgement of receipt of the document every time it is distributed.  This acknowledgement should clearly state that the employee understands that they are required to read the policy and raise any questions.
After drafting, finalizing and distributing the harassment complaint policy, an employer's task is not finished.  The employer should insure that all new hires and all existing employees participate in workplace harassment training.  In addition, the employer should train all managers and supervisors on their responsibilities and on the effective implementation of the procedure.

What Does An Employer Do When It Receives A Workplace Harassment Complaint?

Employers must be able to demonstrate that they consistently follow their workplace harassment complaint policy by promptly investigating allegations of workplace harassment, and taking appropriate remedial measures to resolve the discriminatory conduct.   
In doing so, the employer should respond to complaints of harassment as soon as possible by initiating an investigation.  In conducting the investigation, the employer should generally follow these steps:

• take the complaint from the alleged victim
• interview the accused
• interview witnesses and potential witnesses, leaving no stone unturned
• review relevant work records
• determine appropriate remedial action
• communicate outcome of the investigation to the complaining party

At every stage of the investigation, the investigator should:

• maintain an open mind
• assure the victim, and warn the alleged harasser and witnesses, that reprisals will not be tolerated
• document each stage of the investigation, keeping in mind the possibility of discoverability in lawsuit several years in future

Taking these steps will go a long way to protecting your organization from potential legal liability for workplace harassment.

The information in this article is intended as general background information on labor and employment law for JSEC members.  It is not to be considered as legal advice. 
John M. Bagyi counsels and represents employers in a variety of labor and employment-related contexts and is a Member in Bond, Schoeneck & King’s Albany office and can be reached by email (jbagyi@bsk.com), phone (518-533-3229) or fax (518-533-3299)