From #MeToo to #NotHere: Essential Strategies to Prevent Workplace Harassment

What are some examples of harassment that aren’t sexual in nature?

One example is racial harassment. Making ongoing inappropriate comments or jokes about a person’s race. Or age-related harassment – maybe an employee is experiencing ongoing discrimination because of his or her age. These are just examples. Harassment occurs when someone shows hostility toward another person because of his or her gender, age, race, color, national origin, religion, disability or any other protected category.

What should you do if the employee accused of harassment says his comments were just jokes and he didn’t mean it?

It doesn’t matter if the employee was joking or not. For employers, the main point when dealing with harassment in the workplace is that the impact outweighs the intent. The harasser may claim, “I meant it as a joke,” but the perception of the person or people who’ve been exposed to the conduct takes precedence.

I have an employee complaining about a client’s behavior. Could that be harassment?

Yes, that could be a case of workplace harassment. Employees are protected against harassment from clients, vendors and anyone else they come into contact with through the workplace. My advice here is to take steps so the employee doesn’t have to work with that particular customer.

Shouldn’t employees who feel they are being harassed try to stop it themselves?

Yes, employees should let the harasser know they are uncomfortable and they need to stop the behavior immediately. And this should be covered in training. You need to let employees know that if they are uncomfortable with someone’s conduct, they need to speak up or walk away. If a topic is brought up that you don’t like, change the subject or walk away. But even if an employee doesn’t take action to try to stop the behavior, it could still be illegal harassment, and it doesn’t change your responsibilities as a manager or employer.

Before an employee can file a complaint are they required to verbally tell the other employee to "stop"?

This is very similar to our previous question. To answer this specifically, telling the accused harasser to stop is not a pre-requisite to making a complaint. There could be several reasons that an employee may not feel comfortable confronting their harasser. It could be that the harasser is the employee’s manager and he or she fears retaliation or fears that the harassment will only get worse.

Does hostile harassment includes making noises when a person walks by?

Hostile work environments occur when there is a pattern of continuing unwelcome behavior that unreasonably interferes with an employees work performance or that creates a hostile, intimidating, or offensive work environment. This can cover a wide range of situations and behaviors. If these noises are continuing and unwelcome and creating a hostile, intimidating or offensive work environment then it absolutely qualifies as a hostile work environment.

Is it considered harassment even on the first offense if it's illegal? Can a warning be given in lieu of termination?

This is a two-part question. I am going to first tackle when harassment becomes illegal. Conduct can be considered inappropriate harassment even if it does not rise to the level of illegal and that inappropriate conduct should be prohibited and discipline even if it is not illegal. For inappropriate harassment to rise to the level of to become illegal the conduct must occur based on a person’s legally protected characteristic such as gender, race, religion, color, age, disability, genetic information and any other protected class. Further, the conduct has to be uninvited and unwelcome and the conduct must be sufficiently severe or pervasive to create a hostile or offensive work environment. The second part of this question is about proper discipline when harassment occurs. The proper discipline is going to depend on numerous factors. Employers should consider the nature and severity of the offense as well as the frequency of the harassment. If the conduct was a one-time minor event, then a verbal warning may be warranted. But, if the conduct was extreme or has continued over a period of time, then termination could be appropriate. This is something that is going to have to be considered on a case-by-case basis. Make sure you are consistent in your discipline however. If you just give a verbal warning to an employee for their first and minor offense, you should follow that precedent for any other similar situation.

If an employee does not want to file a compliant in writing at that moment, will they eventually need to file a written complaint or will it be the responsibility of HR.

Once you receive a complaint about harassment, the complaint must be timely and thoroughly investigated regardless if the complaint was verbal or in writing. Written reports are generally done by the investigators when they are doing the investigation so that they can document their findings and use it for the basis of any disciplinary measures that may be necessary. It may or may not be the specific responsibility of HR. It just depends on how your company will handle the complaint and investigation processes. You may have your HR department handle the complaint or you may have another person in your company or even an outside investigator come in to handle the complaint. The important part is that all complaints, whether verbal or written, are taken seriously and properly investigated.

How often should we train our employees?

It is recommended that training occur at least annually. Some states like California for employees and Delaware requires training every two years. Even if you live in a state that has this requirement of every two years, you can still train annually. The two-year requirement is the minimum requirement – you can always do more. Also, some states require that training for new hires take place within so much time of the date of hire – so it is best to train new hires as soon as possible after they begin their employment with your company. Make sure at a minimum you are following your state and local laws regarding training if you live in a state that has training laws.

Any recommendations for responding to an employee that is upset an investigation is not "complete" yet after a few days? Also, are there guidelines around how long instigation should last (obviously it must be thorough)?

Great question – it’s understandable that employees that have been harassed are already uncomfortable and/or upset from being harassed. If they are afraid that the complaint is not being taken seriously or quickly enough that can become impatient. Communication will be important. You need to communicate to them that you are conducting your investigation as quickly as possible but that you also have to be fair and thorough. You can explain the process in general terms such as you have to do interviews of several witnesses, personnel records reviews, assess relevant evidence, etc. Be professional at all times in your communications with the employee. As far as guidelines around how long your investigation should take – the EEOC recommends that investigations should be completed within 48 hours of receiving the complaint. This is not always possible depending on the circumstances but it should be the goal.

The Preventing Workplace Harassment course from HR 101 gives you a solid understanding of what you need to do to protect your employees and your business. You’ll discover how to promote a harassment-free workplace, train your staff and handle a complaint.