Harassment

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Harassment

The same laws that govern discrimination, also govern harassment. That means that the only kinds of harassment that are actionable are those that are based on race, color, religion, national origin, sex, age or disability.

I get calls all the time from people who complain that their boss is just the worst. He yells at them. He micro-manages them. He criticizes them. - "He's harassing me!" they exclaim. And they're right. He IS harassing them. But it isn't against the law. THERE IS NO LAW AGAINST JUST PLAIN BAD BOSSES.

In fact, being a bad boss can form the basis of the company's defense. It is called "the ass-hole defense." He wasn't discriminating against her - he treats everyone that way, because he's just an asshole. It's embarrassing for the defense attorney to have to argue that defense-but it works.

However, any kind of harassment, even the kinds that are not actionable, can push an employee to leave work on a stress-related disability. This can open the employer up to a Worker's Compensation claim or a claim on the employer's disability insurance policy.

So, even if there is no threat of legal action, it is still a good idea for the Employer to weed out harassment, in any form it appears.

SEXUAL HARASSMENT: The biggest problem with sexual harassment is not that people know it is wrong. It is trying to understand what it IS. If your company has just gotten the biggest contract in its history, is it OK for the boss to hug his subordinates? Is it safe for a boss to take his secretary out to lunch to celebrate Secretary's Day?

The Supreme Court has given a little guidance to this issue, and formed the following criteria:

UNWANTED: The action must be unwanted. If the recipient of the action really doesn't mind, then it isn't harassment. However, just because someone doesn't speak up and demand that the behavior stop, does not mean that the person is not bothered by the behavior. Some people are shy, and some circumstances make it almost impossible for the person to complain. What if the harasser is the President of the company? What if it's the president's son? What if it is the supervisor?

Supervisors and Managers should be proactively watching for suspect behavior, and checking in with the recipient of the behavior, just to be sure. In a minute, I'll tell you why.
SEVERE OR PERVASIVE: There is a continuum of behavior, from mildly annoying to very severe. The worse the behavior, the less often it has to occur to qualify as harassment. In general, unwanted touching, or physically forcing oneself on another is considered more severe than verbal harassment. If the behavior is sufficiently severe, it only has to happen once. If it is more mild, it must be recurring and ongoing.

That's why the employer lost in the "Seinfeld case." In 1996, a male employee shared the plot of the previous night's Seinfeld episode with a female co-worker. It was the one where Jerry can't remember his date's name, but he remembers that it rhymes with a female body part. The woman's name was "Delores." Just to make sure the co-worker got the joke, the man grabbed a dictionary, and pointed out the rhyming word to her. She got offended and reported him for harassment. The company over-reacted, and fired him. He sued. $20 Million jury verdict, of which $1 Million was assessed against the woman personally.
REASONABLE PERSON STANDARD: If a company employs a fundamentalist Muslim, does it mean all the women in the office must cover their faces, so as not to offend him? Of course not. His discomfort is going to be measured against a "reasonable person" standard. If the complainant is a woman, it will be a reasonable woman, standing in her shoes. However, if a company has a corporate culture of sexual banter and teasing, beware, if a new employee takes offense. You must consider whether an objective, reasonable woman standing in her shoes would be offended, too. Resist the impulse to terminate the new employee, in order to preserve the sexually charged corporate culture. Such an employer opens itself up not only to a charge of sexual harassment, but retaliation as well.

QUID PRO QUO: This is the classic "something for something" kind of harassment. Sleep with me, and I'll get you that raise. Sleep with me, and I'll get you that promotion. Don't sleep with me, and you're fired.

The biggest problem for the complainant in this type of harassment, is that the harasser almost NEVER does it in front of anyone, so it become a proof problem. Sometimes complainants try to get the harasser on tape. BE CAREFUL ABOUT THIS. Whether or not you are allowed to tape someone without his/her knowledge, depends on your state's anti-wire-tapping laws. In Pennsylvania, you may NOT tape someone without his/her consent. If you do, you may be liable for criminal penalties.

HOSTILE ENVIRONMENT: A hostile environment becomes actionable when the harassment is so severe or pervasive that it affects the employee's ability to do her job. It can include sexually explicit magazines, pictures, cartoons, comments, jokes, or more malevolent actions like physical touching, or even rape.

WHEN IS THE COMPANY RESPONSIBLE?: In 1998, the Supreme Court announced that if the harassed employee experienced a tangible job detriment as a result of the harassment, the company would always be liable for the actions of its supervisors or managers.

If the complainant did not actually suffer a tangible job detriment, then the company has one affirmative defense. It must have in place a formal, written policy. It must train and educate its staff on that policy. It must enforce that policy. AND - the complainant must unreasonably fail to avail herself of the protections of that policy. Even then, this is only an affirmative defense. If the claimant can prove that the company did have reason to know about the harassment, even though it had a policy, or that it did not implement or enforce the policy, it will still be liable.

[ Discrimination ] [ Title VII ] [ Sexual Orientation Discrimination ] [ Harassment ] [ Age Discrimination ] [ Disability Discrimination ] [ Wrongful Termination ] [ The E.E.O.C. and State Agencies ]