A popular topic among managers is preventing workplace harassment and bullying to avoid workplace issues among employees of all levels. We are in a time were being preventative is key to success (translation: no legal claims). To get there though, managers must first understand what conduct and behavior is considered illegal conduct of harassment and bullying and how left unchecked it could become a serious problem for the business. This includes making sure employees are educated about their rights and responsibilities if they experience unacceptable conduct in the workplace, including the procedure for reporting unlawful conduct that happens to them or someone else.
Let’s Talk Conduct
What is harassment?
Harassment is a form of discrimination. The EEOC explains that “harassment becomes unlawful where enduring the offensive conduct becomes a condition of continued employment, or the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” The conduct may consists of words, signs, jokes, pranks, intimidation, physical actions or violence that is directed at an employee due to any protected class. Special attention should be paid to sexual harassment.
When does harassment become sexual harassment?
Harassment becomes sexual harassment when there is any unwanted verbal or physical advance, sexually explicit or derogatory statement, or sexually discriminatory remark that is offensive or objectionable to the recipient, or which interferes with their job performance. Sexual harassment can occur between males and females, or between persons of the same sex, it knows no gender boundaries. More so, there are two types of sexual harassment, which are when there is a hostile work environment or expectations of quid pro quo.
A hostile work environment is not dependent on whether the conduct is of a sexual nature. Instead it is created by words, signs, jokes, pranks, intimidation, physical actions or violence that is directed at an individual because of that individual’s sex.
Meanwhile, quid pro quo occurs via actions between an employee and someone with authority, like a manager or supervisor, who has the ability to grant or withhold job benefits in exchange for sexual favors.
What is bullying?
Bullying may rise to a form of harassment depending on the facts and circumstances. It occurs when an employee, repeatedly and over a prolonged time period, is exposed to harassing behavior from one or more co-workers (including managers or supervisors) and where that employee is unable to defend themselves.
Let’s Talk Players
Who are protected persons in the workplace?
Businesses and employee should aim to protect three categories of people from illegal conduct by an employee: (1) employees, (2) unpaid interns, and (3) non-employees who work in the workplace, such as independent contractors, and those employed by companies contracting to provide service in the workplace, such as those from a staffing agency.
Who are you protecting them from?
This is more difficult to define because, unfortunately, anyone in the workplace can slip into the role of perpetrator—co-workers and colleagues, supervisors or managers, any third party whether a non-employee, intern, vendor, security agent, client, customer, or visitor. The scope is so broad because illegal conduct knows no bounds as it can arise anytime and anywhere an employee fulfills their work responsibilities—in the field, at any employer-sponsored event, trainings, conferences, or office parties. Why is the scope so broad? These activities can all be argued to be an extension of the workplace.
Let’s Talk Goals
How can you avoid claims of harassment or bullying?
Remember, it’s all about a commitment to a safe, fair, and productive workplace for all individuals. Laws and policies help ensure that diversity is respected and that everyone can enjoy the privileges of working at the company, which is why businesses may want to consider a zero-tolerance policy. Such a policy would clearly state that discrimination, harassment, and bullying will not be tolerated under any circumstances, and reports of such conduct will be taken seriously and promptly investigated, with effective corrective action taken where appropriate.
Notice the two prongs necessary to enforce a zero-tolerance policy? They are (1) reporting and (2) complaint forms.
When we consider a reporting procedure we want to make sure it is clearly outlined and states that all employees are encouraged to report discrimination or harassment to a supervisor, manager, or a company-designated employee to receive complaints so someone can take action. You want to remind employees that conduct does not need to be a violation of the law to be in violation of the company policy.
Complaint forms solidify the process, giving the employees control to complete them on their terms and turn them over without feeling judged. These forms should be submitted to the appropriate person at the company who will be charged with opening an investigation, whether that person is a member of HR or an employee-designee. Above all, it is important that all employees know who this person is and how to contact them.
Relevant EEOC Sexual Harassment and Retaliation Case
On August 26, 2022, the EEOC announced a settlement with a critical care transportation company on the basis of sexual harassment and retaliation. The settlement came with a $90,000 price tag in damages.
According to the EEOC’s lawsuit, two female employees experienced repeated sexual harassment by members of management. “The allegations included not only verbal sexual harassment but also physical acts such as unwanted sexual touching and forced submission to sex as a condition of employment.” The intolerable working conditions caused the female employees to quit. “Another female employee was fired shortly after she rejected sexual advances from a supervisor and complained about the sexual harassment, the EEOC charged.”
The settlement prohibits future sex-based discrimination and a hostile work environment on the basis of sex. Further, the company is required to adopt a written policy against employment discrimination, hire a third-party independent investigator to investigate sexual harassment and retaliation claims, and conduct annual training on Title VII of the Civil Rights Act of 1964.
Get Assistance From a Florida Human Resources Lawyer
Every business should be protected and that means protecting its employees, especially from harassment and bullying. If you need to establish a grievance reporting procedure or zero-tolerance policy, please do not hesitate to contact a Florida employment attorney for help.