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Stamping Out Harassment
 

By Jonathan A. Segal   7/2/2014

The U.S. Equal Employment Opportunity Commission (EEOC) identifies eradicating harassment among its key priorities in its 2013-16 Strategic Enforcement Plan and has recently increased the number of related class actions it has initiated. If the agency perceives there to be a hostile work environment affecting many employees, a lawsuit may follow.

Manager Responsibilities

No harassment prevention program is complete without manager training. Some states, such as California and Connecticut, require such training by statute. Others, such as New Jersey, effectively mandate it by case law.

In any case, there are at least three reasons managers should be trained on unlawful harassment: First, with training, some inappropriate conduct will be avoided and, therefore, fewer complaints will be filed. Second, training helps to strengthen the manager’s defense if an employee does not complain before taking formal action. Finally, in the absence of training, a manager has greater exposure to punitive damages. The argument is that the failure to train equals reckless disregard.

5 Elements of Training About Harassment

To avoid any behavior that could be construed as harassment, managers should:

1. Refrain from unlawful harassment or conduct that could give rise to a hostile work environment claim.

2. Report to HR all complaints that could give rise to a hostile work environment. Managers should know that this mandatory duty to report applies even if an employee insists that nothing be done and asks for absolute confidentiality. 

3. Respond proactively to possible unlawful harassment. Silence equals tacit consent.

4. Remedy conduct that may give rise to a hostile work environment complaint. This could involve anything from offering counseling to applying discipline to terminating employees. Managers should consult with HR before issuing a remedy to ensure that whatever action is taken is consistent with similar situations in the past.

5. Understand the importance of nonretaliation. Managers should understand the broad definition of what may constitute unlawful retaliation. The fact that a complaint lacks legal merit is almost never a defense against unlawful retaliation.

Regulating Romance: Options For Co-Worker Dating Guidelines

Many harassment claims involve workplace romance, and the biggest risks occur when employees date, or attempt to date, someone over whom they have direct, indirect or institutional authority.

Generally, managers have three options when it comes to dating guidelines: Dissuading such relationships in the context of training. Imposing a notification requirement. Changing the reporting structure for a supervisor dating his employee is one possible option. Prohibiting individuals from dating, or attempting to date, those over whom they have direct, indirect or institutional authority.

Such a prohibition would arguably prohibit anyone in HR from dating anyone else in the company.

While this is the safest legal option, it may not be the most practical. In fact, it could push workplace romances underground, eliminating any public evidence that the relationship was “welcome.”

Regardless of which approach you take, focus on the workplace relationship and not the personal one. There is a big difference between saying “You cannot date someone you are supervising” and “You cannot supervise someone you are dating.” The former statement may be seen as regulating off-duty conduct, while the latter more appropriately restricts the supervisory-subordinate relationship.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia.

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