Harassment in the Workplace

Jennifer L'Estrange
November 29, 2017

This morning, NBC announced that Matt Lauer was terminated for misconduct, the latest in a string of harassment complaints across several high-profile industries.  It’s left employers wondering how deep the problem is and how to create a workplace where people feel safe and are treated professionally, while at the same time, respecting personal lives and, quite honestly, not turning their HR departments into the compliance police.

What is harassment?

The EEOC defines harassment as “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.” https://home/redcloverhr/htdocs/redcloverhr.com.eeoc.gov/laws/types/harassment.cfm

Great.  Now, as an employer, what do you do with this information?

Dot your I’s and cross your T’s.

Naturally, every employer wants to protect itself from potential harassment liability that may arise from its workplace.  If you don’t already have a policy in your handbook that covers harassment, start there. For smaller businesses, reach out to your payroll provider for support.  They often have template handbooks that they offer their clients at a very reasonable price.

From there, you need a process in place to receive and investigate complaints.  It’s critical that your employees feel that if and when they raise concerns, that they will be addressed quickly, effectively and without fear of reprisal.  The following suggestions can aid in an investigation: (1) investigate promptly, but be thorough, including inquiring into who the possible witnesses are and interview them all, including the employee who complained; (2) do not jump to conclusions – there are two sides to every story, so the company should take a measured approach in evaluating the information collected from witnesses and other sources, such as video, documents, time cards, etc.; (3) consider using someone outside the company to handle the investigation if the complaint involves a high-level employee or could otherwise expose the company to legal liability; in other cases, an HR-managed investigation could be appropriate; (4) take some kind of action, and the punishment should fit the crime.  Thus, the more serious the conduct, the more serious the repercussions should be against the offending employee; and (5) keep the complainant apprised of what the company is doing.  Now, this can be a sticky wicket, because you need to avoid revealing confidential employment-related information about the offending employee, such as details gleaned from interviews or  specific outcomes of the investigation, but do tell the complainant about the status of the investigation, how many witnesses have been interviewed, what other information was reviewed and that some action was taken.

This article from SHRM offers more detailed advice on the steps to put in place to guide your investigation procedure. We also recommend having an employment lawyer support you in creating a procedure with the appropriate steps, defining roles and responsibilities, and maintaining documentation that could serve as evidence in court, if it comes to that.

Lastly, if you’re not already providing compliance training, now’s the time.  If you have been conducting training, great, but now would be a good time to review and update its content if you have not done so recently.

Build your culture.

Great workplaces have a culture of trust. In such workplaces, people aren’t afraid to come forward with a complaint, and honestly, it’s rare.  Such level of comfort is  rare because, let us face it, employees tend to hesitate in reporting their colleagues and superiors.  On the whole, however, people generally want to do the right thing (if you are a glass-half-full kind of person). As complex and confusing as harassment investigations can be, no one who has crossed the line, even once, ever thought that they were doing the right thing.  In any event, the message that inappropriate workplace behavior is not okay must come from the highest level – whether that is a principal in the business or a top executive.  This will foster a top-down culture of a respectful workplace, and a prompt, appropriate investigation and action when an employee’s conduct is contrary to that culture.

Avoid the temptation to distance people from each other either through restrictive policies or overly formal behavior. Build a culture where your people genuinely care about each other. Harassment is, at its core, hurtful. Reasonable people don’t hurt the people they care about. And they don’t tolerate it from others, either.

About the authors:

Jennifer L’Estrange is the Managing Director at Red Clover, a consulting firm that specializes in strategic HR and organizational change management.  Learn more…

Aimée Lin is the founder and member of Sato Lin LLC, a law firm that specializes in employment litigation and advice for mid-sized businesses. Learn more…


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