Earlier this year, the U.S. Equal Employment Opportunity Commission (EEOC) released a set of proposed guidelines for enforcement guidance in harassment cases. Ideally, these proposals will help federal agencies more effectively stamp out systemic discrimination while providing employers with the tools to better understand how to prevent harassment in the workplace.
And while these proposals are still under consideration, they definitely offer insight into the prosecutorial direction that the federal government will be taking in the near future, and they highlight a few gap areas where businesses currently may not be placing enough focus to prevent harassment.
Want to reduce the chance that an inappropriate conversation will happen in the office? Read: 5 Topics Employees and Managers Should Avoid in the Workplace
Just because a harassing action isn't directly targeted at an individual employee, it does not mean that the behavior can or should be tolerated. For example, the public posting of pornography in the workplace has long been held to create a hostile work environment and lay the groundwork for sexual harassment claims, even if no employee or manager made any inappropriate statements directed at a specific employee.
Offensive graffiti, such as in a public break room or rest room, can have the same result. In Tademy v. Union Pacific Corporation, the 10th District Court of Appeals ruled that anonymous, racially insensitive graffiti could contribute to a claim of discrimination, particularly if the employer did not take reasonable action to identify the perpetrator or resolve the issue.
Your business cannot afford to ignore any harassing behavior, even if it occurred off site or after hours. In Crowley v. L.L. Bean, Inc., the 1st Circuit Court of Appeals ruled that the harasser's "intimidating conduct" outside of the workplace -- including entering the complainant's home without knocking -- caused both discomfort and fear, creating a hostile work environment.
In addition, these outside of work incidents can extend beyond the "real world" into cyberspace. The proposed EEOC guidance specifically calls out inappropriate social media posts, particularly when these online statements are further discussed in the workplace.
More than likely, your workers will frequently come into professional contact with people who are not employed by your business, such as customers, partners, or suppliers. And while you are not directly responsible for the actions of these outsiders, your business is still responsible for protecting its employees from the inappropriate conduct of these people.
Fred Meyer, a national grocery chain, paid $487,500 to seven of its employees after the business failed to respond to an ongoing campaign of sexual harassment from a customer. While the employees repeatedly reported the harassment to supervisors, the store's management staff refused to act unless they personally witnessed the misconduct.
In the proposed guidance, the EEOC thoroughly outlines the heightened responsibility that managers face in preventing and dealing with harassment. In addition, the document expands this responsibility to employees that may hold an "unofficial" managerial status without any direct supervisory power.
These unofficial supervisors could be any employees with increased oversight responsibilities or delegated authority, for example a non-management employee charged with locking up a business after a late shift. Similarly, these unofficial leaders could include any employee that can "substantially influence tangible employment actions," such as hiring recommendations.
Considering that your organization can be held equally liable for the actions of these non-management workers, it would be wise to provide this class of employees with management-level training.
After an inciting incident has occurred, far too many employers and managers engage in retaliatory behavior directed at the complaining employee. In fact, the EEOC has found that retaliation is the "most frequently alleged basis of discrimination in the federal sector" as well as the "most common discrimination finding in federal sector cases."
An effective training program will not only help to avoid and prevent inciting incidents, but it will also discourage employers from targeting complaining employees with such tactics as:
By being proactive and empowering your managers with the training and tools to identify, respond to, and prevent harassing behavior, you can better protect your business, your employees, and your reputation.
To learn more about how we can help create a more welcoming and inclusive environment for all of your workers, request a demo of our harassment and discrimination prevention courses today.
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