For years, the U.S. Equal Employment Opportunity Commission (EEOC) and the US Supreme Court have strongly encouraged employers to establish harassment prevention training and have punished certain employers who fail to educate their employees. Several states (e.g. California, Connecticut, and Maine) require harassment education and make it unlawful for failure to train. All companies – big and small – must understand the definition of harassment, recognize the applicable mandatory training provisions, and ensure effective delivery of programs to protect their businesses.
A few employers generally understand the basics of what is considered workplace harassment, but many often neglect or tend to forget that discrimination plays a significant role. According to the EEOC, unlawful harassment is a form of discrimination that can violate one or more federal statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA). Workplace harassment and discrimination can relate to each other because both may involve unwelcome verbal or physical conduct and behaviors often associated with protected classes including race, color, religion, sex, sexual orientation, national origin, ethnicity, age, and disability. Harassment may result from internal sources (e.g. employees and managers) or external sources (e.g. customers, vendors, and visitors to the workplace).
Examples of workplace harassment include:
- Use of derogatory or mockery words encompassing skin color, religion, gender, age, and stereotypes.
- Body language (e.g. profane gestures) and materials (e.g. explicit photos) considered offensive.
- Insulting inferences or sexual references about an individual’s appearance (e.g. body parts or clothing attire).
An employer can be held liable for harassment by a supervisor that results in negative employment actions such as termination, failure to promote or hire, and loss of wages. In 2011, the EEOC stated 16.3% of charges were filed by males regarding sexual harassment. Employers having any knowledge about harassment (even alleged) and failing to take prompt and appropriate corrective action, can be held liable for harassment by non-supervisory employees or non-employees of whom it has oversight responsibilities (e.g. independent contractors or customers on the premises). If a complaint is filed with the EEOC, a determination as to whether the harassment is severe or pervasive enough to be deemed illegal is made on a case-by-case basis.
Prevention is the best tool to decrease or eliminate harassment in the workplace. Take proactive (and documented) steps to prevent and correct prohibited harassment prior to it becoming pervasive or unlawful. Clearly communicate to employees that unwelcome harassing conduct will not be tolerated. In particular, provide anti-harassment training to all managers and employees on a regular basis. Determine if the state you do business in, requires sexual harassment training. Three states (California, Connecticut, and Maine) currently require sexual harassment training to be provided for supervisory employees according to company size and other factors.
Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed. Therefore, minimize your company’s liabilities by protecting your business against law suits and preventing harassment in the workplace by consistently communicating and educating all of your employees and supervisors.
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