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Are You Doing Enough to Address Perceived Harassment in the Workplace?

Published on 8/28/2018 12:00:00 AM
Understand the full scope of what can be considered harassment in the workplace, and your responsibilities as an employer.

Are You Doing Enough to Address Perceived Harassment in the Workplace?

From high-profile cases involving Morgan Freeman, Harvey Weinstein and Matt Lauer — to everyday situations in small businesses — the awareness and sensitivity to harassment have never been higher. This surge in sexual harassment claims has put many workplaces on high alert.

There are various types of harassment under the law — and all must be recognized and prevented to maintain a productive, harassment-free (and lawsuit-free) workplace. In the case of Morgan Freeman, for example, eight individuals claimed to be victims of misconduct, and another eight said they witnessed the inappropriate behavior. As the #MeToo movement continues to gain momentum, it’s critical to understand the full scope of what is considered sexual harassment.

Considering Sexual Harassment – Beyond the Obvious

In simple terms, sexual harassment is any unwelcome or unwanted conduct of a sexual nature that is perceived by somebody to be offensive.

Harassment becomes illegal when this unwanted conduct becomes so frequent or pervasive that it creates an intimidating or offensive work environment that interferes with a person’s work performance. This is called “hostile environment” harassment, and it includes perceived harassment as described.

Clearly, this goes far beyond what many people first think of when they hear the term ‘sexual harassment.’ The more common interpretation involves a person in authority pressuring a less-powerful employee for sexual favors in return for a reward or negative consequence, such as a raise or threat of termination. (In legal terms, this is known as ‘quid pro quo’ harassment.)

Also important to consider is that the offended individual does not necessarily need to be the object of the behavior. Hostile environment claims can be made by individuals who simply observe the behavior, whether or not the individual being targeted with the behavior perceives it as offensive.

The Boundary Is in the Eye of the Beholder

While some may question the difference between a compliment or a well-meaning gesture (such as a hug) and sexual harassment, the bottom line is this: With sexual harassment, perception is reality, and it’s never appropriate to suggest that the person who complains is being “too sensitive” or unreasonable.

Employers need to accept that sexual harassment can be different to different people; there can be interpretations, nuances and ambiguities across genders, sexual orientation, people from different cultures and even generations.

Also, sexual harassment doesn’t have to be as obvious as Harvey Weinstein’s alleged conduct. It can include incidents of lewd jokes, persistent innuendo, crude remarks, leering, staring and other nonverbal communication — all leading to a hostile environment as defined by the law.

For employers, the main point when dealing with sexual 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.

The law related to sexual harassment often is decided from what a “reasonable person” can perceive, and employers should create and develop workplace policies with this assumption as a guideline.

Actions to Prevent Sexual Harassment in the Workplace

Maintaining a harassment-free workplace should be an ongoing priority for all employers. Ignoring questionable behavior or cutting corners with training could hurt your business through a range of costs — lower morale, decreased productivity, loss of valuable employees, and increased risk of EEOC claims and lawsuits.

Here are four essential actions to take:

  1. Make sure you have a written sexual harassment policy — Your policy should clearly state what sexual harassment is and cover what conduct can be perceived as harassment. Outline your procedures for protecting and supporting employees when an incident occurs as well as the consequences for anyone who violates these guidelines. Make sure your policy identifies multiple paths to report incidents of perceived sexual harassment.
  2. Provide assurances against retaliation — Employees often don’t report incidents because of fear of reprisals. Include an anti-retaliation statement in your policy. Communicate to employees that anyone who comes forward with a claim, or anyone who participates in an investigation, will not experience any form of retaliation and will not be adversely affected with his or her employment.
  3. Conduct annual training sessions — Your training needs to dispel the common myths about harassment, specifically identifying conduct that can be perceived as sexual harassment. In addition to employee training, hold bi-annual sessions for supervisors and managers to ensure they are fully aware of the procedures for handling employee complaints or infractions as well as the potential liabilities.
  4. Empower the bystander — According to reports of many recent high-profile cases, the alleged sexual misconduct was known by other employees for years. This indicates that incidents are often observed or witnessed by others — and can be stopped. Training should always include practical guidance on how an observer can safely intervene. Employees should be encouraged to:
  5. Run interference or disrupt the situation safely
    Record details of the incident(s) immediately
    Report all incidents using the formal procedures established in your policy manual

A Harassment-Free Workplace Is Possible

No business is immune to sexual harassment, but as an employer, you can prevent harmful behavior and protect your business from legal risks. Having a written, clearly stated anti-harassment policy and establishing strong training programs will help you reduce and eliminate this unwanted, unlawful and costly behavior.

Want more insight on what to look for and how to safeguard your business? Download this free resource — Recognizing and Preventing Harassment: 5 Scenarios to Test Your Awareness — to assess your knowledge and identify best practices in creating a harassment-free workplace.

Ashley Kaplan, Esq.
Presented by: Ashley Kaplan, Esq.,
Senior Employment Law Attorney
A record number of state and local employment laws were passed in 2018, and many more are pending. With each new law that passes, employers must struggle to understand and comply with ever-increasing obligations.