Harassment Today

Jathan Janove, J.D. By Jathan Janove, J.D. October 4, 2021
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Harassment Today

Jurors and the Equal Employment Opportunity Commission (EEOC) are holding employers to higher standards in recent workplace harassment cases, according to experts speaking at the recent SHRM Annual Conference & Expo 2021. And the switch to remote work doesn't mean employers can let down their guards.
Dennis Davis, Ph.D., national director of client training at law firm Ogletree Deakins, and Joe Beachboard, managing director at the firm, shared the following tips and advice to promote a harassment-free, claims-free work environment.

Juror Research

According to research by Dan Gallipeau, Ph.D., of Dispute Dynamics Inc., the vast majority of jurors or prospective jurors believe that just because harassment wasn't reported to an employer doesn't mean it didn't occur. In fact, they believe employees typically don't report harassment out of fear of retaliation.
Yet a common defense strategy employers adopt is to assert that the plaintiff never used the company's complaint procedures and that the company therefore had no notice.
But based on Gallipeau's research, a healthy majority of jurors would respond with, "So what?" The lesson for HR professionals: Don't become complacent about harassment just because there haven't been any internal complaints.

The research also found that slightly over half of jurors surveyed said that if an employee has complained about harassment on social media, the employer has effectively been notified about that harassment. So, for example, if an employee posts on Facebook about experiencing a problem at work and  her friends include a few fellow employees, most jurors would conclude that the company was put on notice for the harassment.

Jurors expect organizations to be proactive, dealing out strong anti-harassment policies and training, as well as swift and certain responses, when problems arise. There need to be serious consequences for offenders; a slap on the wrist will no longer be tolerated.

EEOC Activism 

Beachboard and Davis also noted that the EEOC has recently become much more aggressive in pursuing harassment claims: It has collected nearly $70 million in fines from employers in the last two years, a 50 percent increase since 2010.

To help employers avoid a harassment claim, the agency has listed five necessary conditions to create a harassment-free work environment:

  1. Commitment from senior leadership.
  2. Consistent application and approach in preventing and remedying harassment.
  3. Policies that make clear what the expectations are. Davis cited research indicating that when expectations about behavior are made clear, 90 percent to 95 percent of employees will conform.
  4. A complaint procedure that removes barriers to making a complaint and protects complainants against retaliation.
  5. Tailored, interactive anti-harassment training that, as Davis put it, "engages the brain cells." 

Remote Work

Employers should not assume that a shift to remote work relieves them from harassment-prevention responsibility. Beachboard and Davis cited recent harassment cases arising from online activity, including such actions as sending a co-worker a kissy face emoji. In another case, denying a request for remote work was cited as evidence of quid pro quo sexual harassment and retaliation.

Davis and Beachboard provided the following recommendations:

  1. Conduct a thorough policy compliance review. Make sure policies have the necessary clarity and check the appropriate boxes. This includes conveying a strong message that retaliation will not be tolerated, adding language addressing bullying and vulnerable populations, and adding protocols for virtual and remote work environments.  
  2. Train all employees. Employees, supervisors, managers and senior leaders need tailored, interactive education.
  3. Conduct effective investigations. Encourage factual statements, be prepared to listen, ask questions to clarify and assist, document from intake to resolution, and maintain confidentiality to the extent possible.
  4. Provide multifaceted reporting options. Provide e-mail, text or confidential phone number options for employee to file complaints, and make sure employees have easy access to information on how to make a complaint. Make sure all barriers to reporting are removed.
  5. Provide prompt remedial action. Consider interim measures during an investigation, but don't punish the complainant. Take reasonable steps to prevent and correct behavior. Conduct does not have to rise to the level of harassment to warrant remedial action; misconduct is enough.
  6. Develop a public relations response that's proactive. Formulate the plan before claims become public. Evaluate the existing strategy and have resources available for rapid response.
  7. Manage technology. Monitor social media compliance, and remind employees of e-mail etiquette (including forwarding, CC lists and reply-all functions) that could expose employees to unwanted jokes, images and language. Address background issues during virtual meetings, such as inappropriate noises, graphics or pictures, and alcohol and drug paraphernalia.
  8. Reinforce the organization's dress code. Ensure that all employees understand and follow the expectations for appropriate attire during video meetings and trips to the workplace. Davis noted that although employees enjoy dressing casually, research shows that casual dress can lead to problematic casual behavior.
  9. Remember what's not harassment. This includes equal enforcement of policies, rules and expectations; insistence on strong work performance; and valid criticism of job deficiencies.
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