Illegal Workplace Harassment: It's Not Just Sexual!
© Ronald J. Rakowski, SPHR, CELS
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area or department, a coworker, or a non-employee.
- The victim does not have to be the person harassed, but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser's conduct must be unwelcome.
When investigating an allegation of sexual harassment, EEOC looks at the entire record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination of the guilt or innocence of the alleged harasser, and his or her employer, is made on a case-by-case basis.
So, to avoid the legal entanglements inherent in violating anti-discrimination statutes enforced by the courts and the EEOC, employers and its supervisory staff must ensure that the workplace is a place where all "protected class" employees can work productively in an environment free of abuse, intimidation, or harassment.
Despite good intentions, an employer can be subject to vicarious liability as a result of actions by one or more of its supervisors. In 1998, the U. S. Supreme Court established an employer's vicarious liability for unlawful harassment by supervisors. This standard of liability is based on two principles: 1) an employer is responsible for the acts of its supervisors, and 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.
To avoid liability or limit damages, an employer should establish an affirmative defense that includes two necessary elements:
- The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
- The employee reasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
Although federal statutes and EEOC guidelines don't require employers to have an anti-harassment policy in place, an employer can decrease its workplace harassment liability by publishing and enforcing a policy that establishes its position on workplace harassment and outlines the remedies available to victims of workplace harassment.
The EEOC suggests that an anti-harassment policy contain, at a minimum, the following elements:
