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Excerpt--Investigating Workplace Harassment

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By Amy Oppenheimer, J.D., and Craig Pratt, SPHR, MSW

2002, 204 pages, Paperback

ISBN: 1586440306

SHRMStore Item #: 61.14001

Order from the SHRMStore or call (800) 444-5006

Harassment and the Law

Before you embark on an investigation of workplace harassment you should understand the law prohibiting harassment and the relationship between an employer's policies and the law. Employers have obligations under various laws, contracts (such as union contracts), and their own policies to protect employees from harassment. Familiarity with the contents of published court decisions will give you ideas about what to look for during the investigation.

Laws Prohibiting Workplace Harassment
and federal laws prohibit discrimination in the workplace. Some municipalities also have passed laws that expand the categories of people protected from discrimination at work. Harassment is considered one form of discrimination. Therefore, discriminatory harassment violates these laws. Most state laws resemble the federal law and a state statute must provide at least as much protection against discrimination as the federal statute.

Some state anti-discrimination laws are even broader than the federal law. The differences between state and federal laws usually are unimportant when it comes to preventing and responding to harassment, but may affect when an employer may be held liable for harassment. For example, some states and municipalities have laws protecting employees from harassment based on sexual orientation whereas the federal law does not include sexual orientation among the protected categories.

Most employer policies afford broad protection under their nonharassment provisions. "Whether the harassment relates to a protected category (such as race) or an unprotected category (such as wearing striped clothing), it's good HR practice to respond appropriately to all complaints of harassment.

To violate the law, harassment must

1. be based on a status protected by law, such as sex, race, religion, disability, sexual orientation (in some jurisdictions); and

2. be either quid pro quo sexual harassment or be severe or pervasive enough to alter the conditions of employment.

"Quid pro quo" is a Latin term that means "this for that." It refers to the type of sexual harassment that involves threatening to exchange or exchanging a tangible work benefit, such as a raise in pay or the chance to be promoted, for sexual favors or some other action.

The "severe or pervasive" standard, which applies to hostile work environment situations involving sexual harassment land all other forms of harassment, looks to the seriousness of the conduct. Only harassment that is determined to be severe or pervasive violates the law. Because of this standard, most isolated incidents -- unless the incident is very severe -- will not violate the law.

Under federal law a variety of laws protect employees from discrimination (including retaliation). These laws include Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, and the Family and Medical Leave Act.

The categories that are protected under federal law include

  • Race
  • Sex (including pregnancy)
  • Religion
  • Color
  • Age
  • National origin
  • Disability

In some states, counties, or cities, protections also extend to

  • Marital status
  • Sexual orientation
  • Medical condition
  • Physical appearance

Workplace rules that prohibit harassment -- including sexual harassment -- usually are broader than the law. Again, to violate the law, the conduct must be severe or pervasive. To violate internal workplace rules against harassment found in many organizational policy documents, the conduct need only be unwanted. For example, Paula Jones claimed that Bill Clinton, then governor of Arkansas (akin to being the state's CEO) invited her to his hotel room, exposed himself to her, and asked for sexual favors. Was this sexual harassment under the law? Not according to one federal court. Would such conduct have been a violation of most employers' rules prohibiting harassment? Almost certainly.

The Paula Jones case is an extreme example. To violate the law, the conduct must involve some tangible job benefit or else be ongoing or extreme. In other cases, courts have found that occasional references to race, even if they are derogatory, are not enough to violate the law. A California court found that calling an employee "Buckwheat" on one or two occasions, and sporadic other remarks that the plaintiff found racially offensive were insufficient for a finding of racial harassment. (See Etter -v- Veriflo Corp.) The court in the Etter case stated that to be actionable racial harassment must be more than "occasional, isolated, sporadic, or trivial acts." Despite this ruling and other decisions in similar cases, we hope that most employers agree that the type of conduct that was alleged in the Etter case would violate workplace rules.

Predicting what behavior a judge or jury will determine to be sufficiently severe or pervasive to violate the law is very difficult. Furthermore, if left unchecked, harassment that begins innocuously can become pervasive or severe. These are some of many reasons that employers should respond to all harassment-even harassment that appears to be isolated or trivial.

In 1999 the Equal Employment Opportunity Commission (EEOC) promulgated regulations that provide guidance on when an employer is liable for unlawful harassment by supervisors. Based in part on two United States Supreme Court decisions in sexual harassment cases ( Burlington Industries -v- Ellerth and Faragher -v- City of Boca Raton), the regulations make it clear that the guidelines apply to all forms of workplace harassment that violate Title VII. The guidelines also provide extensive information on what is expected from employers in regard to the prevention of and response to harassment.

Unionized work settings may prohibit harassment in collective bargaining agreements (CBAS) or memoranda of understanding (MoUs) between the employer and the union. These documents form contractual obligations to treat harassment in certain ways. Affirmative Action plans also may include sections on harassment and how complaints must be handled. Employers should be aware of which laws and contractual obligations apply to them.

Definitions and Examples
As an investigator and an HR employee who must counsel other employees about your organization's policies, you need to have a clear understanding of the meanings of specific terms. What is harassment? What is discrimination? What is sexual harassment? Many of the terms you will encounter and use in an investigation have specific meanings as defined by law or by court interpretations.

Discrimination is treating people differently because they are members of a certain group. Discrimination is an action, not just an attitude. Having a prejudiced idea is not an action. A person can have a prejudice without engaging in actions that discriminate on the basis of that image or prejudice. For example, someone might have a mental image of doctors as being male (a sexist attitude-none of us is free from some of these ideas!) but still go to female doctors.

Attitudes are not always acted on and so do not necessarily result in discrimination. When a person in a position of authority makes a decision about some aspect of another person's employment because of a stereotype, however, prejudice moves from the realm of ideas and feelings into the realm of actions -- and thus, potentially, discrimination. For example, a manager might believe that "older workers are less flexible -- so they should be laid off first when our company experiences an economic down- turn." If the manager decides to lay off older workers on the basis of this belief, the manager has discriminated against the older workers.

Unlawful discrimination, in an employment setting, occurs when an individual is treated differently because he or she is a member of a protected category. The manager noted above has discriminated unlawfully against the older workers because the basis of his decision in the layoff is age, which is a protected category under federal law.

By contrast, consider a supervisor who dislikes people who wear stripes. The stripes look silly to this supervisor and she assumes that people who wear them are silly. She therefore does not assign important tasks to people who wear stripes.

This supervisor is discriminating. But wearing stripes is not indicative of being a member of a protected group. The discrimination, though unfair, is not illegal. Of course, this does not mean such discrimination is okay. At the very least, it constitutes poor supervision!

Harassment occurs when the discriminatory behavior is the manner in which an employee is treated or spoken to, rather than the terms and conditions of employment. As defined above, to be unlawful, harassment must be severe or pervasive. Unlawful harassment based on race often occurs in the form of racial epithets and the telling of jokes that are dis- respectful to a racial or ethnic group. As explained above, unless it is severe, a single instance of joke-telling or a single use of an epithet probably is insufficient to make the harassment meet the criteria for being unlawful. There must be a pattern, persistence, or severity to make the harassing behavior unlawful, but harassment need not rise to a standard of unlawfulness to be unacceptable, in the workplace.

Sexual harassment, simply defined, is when the harassment is sexual, such as sexual jokes, innuendos, requests for dates, and so forth. The harassment can be verbal, physical, or even visual. Some examples of sexual harassment include pressure for sexual favors, touching, cornering, suggestive letters or calls, pressure for dates, suggestive looks, sexual teasing, jokes, remarks, and gestures.

The two elements that must be present for behavior to constitute sexual harassment are

1. the behavior must be unwelcome, and

2. the behavior must be of a sexual nature.

The law defines sexual harassment in very specific terms. As stated above, legal liability for sexual harassment is limited to specific situations; however, an employer must necessarily use a broader definition in policies and procedures in order to prevent offensive behavior.

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