Note: The information appearing in this publication is intended to provide information relating to employment and labor law. It is not intended as legal advice or opinion. For legal advice, please consult your HR and/or Legal departments.
Q. It seems like more and more employees are filing hostile environment harassment claims whenever they are subjected to behavior that they feel is rude or offensive. How many of those claims result in legitimate law- suits against an organization?
A. It’s a common misperception that the definition of what constitutes illegal harassment
has expanded over the past few years. In fact, if anything, case law has somewhat narrowed the definition. Illegal harassment still requires that the behavior is directed at a “protected” class (race, color, sex, religion, national origin, age, or disability), but what constitutes a “protected” class seems to have broadened. For example, the percentage of EEOC charges alleging sexual harassment filed by males has increased over that same timeframe.
We do hear about more and more harassment claims being filed, but that’s not necessarily true. In fact, the EEOC has reported that the number of sexual harassment charges has decreased in each year since FY 2010 (http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm), and generally, so has the amount of money paid out by employers to settle claims. Moreover, while we have heard that a handful of large corporations have paid millions to settle harassment/discrimination allegations, we don’t often hear the fact that a very large percentage of cases are dismissed as having no merit.
Q. My organization has a harassment policy in place. Our processes and procedures regarding identifying and dealing with harassment are legally compliant. So, I don’t have anything to worry about, right?
A. Wrong. Simply having the policy/procedures in place is not a total solution. Courts have said that you must make sure employees know what they are and then follow them. That means constant (at least annual) training that is documented, so you can prove both employees and supervisors are aware of the policy.
Inappropriate behaviors can often escalate into illegal behaviors. An employee who is subjected to inappropriate behavior is much more likely to feel he/she is being treated unfairly and, as a result, file a complaint of hostile environment harassment.
Although it may never get all the way to court, employees can still file a charge of harassment with the EEOC or a state or local civil rights agency. Having a charge filed can cause needless disruptions to an employer’s morale and productivity, not to mention the expense of having to deal with the claim.
Q. I thought that ending up in court was the real problem. Does it really cost that much to deal with a claim that gets tossed out by a judge?
A. Before a harassment case even gets to court, federal (and most state) laws require employees to “exhaust administrative remedies” by filing a charge of discrimination with the EEOC or similar state or local agency. At the agency level, employers must respond to charges even if they believe them to be meritless, and the charge will work its way through the agency, which could take several months or years, depending on the agency. Alternatively, federal and most state laws allow the claimant to request the “right to sue” and go directly to court after the charge has been pending at the agency for a certain amount of time (180 days for EEOC charges). Thus, the process basically starts over in court, again often taking over a year to get to court. Many employers try to get the case thrown out before trial by filing a motion for summary judgment, which is typically done after costly and time-consuming written discovery and depositions have been completed, and several months of attorney’s fees are incurred. Even if the employer wins, then the employee may appeal the decision. This can lead to thousands of dollars in company expenses, just to “clear its name” by defending a meritless claim.
Q. What are some examples of inappropriate behaviors that are currently not considered illegal, but often lead to claims of harassment?
A. This is a tricky question, as there is no clear point at which activity crosses the line from “inappropriate” to “illegal.” Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a “hostile work environment” or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. The problem lies in discerning what conduct rises to the level of a “hostile work environment.”
Harassment cases often involve conduct that began as “innocent” bullying, hazing, teasing, or horseplay. As there is no clear delineation between “innocent” teasing/hazing, etc. and “illegal” harassment, employers should make clear to employees that none of this type of conduct will be tolerated.
Q. So, how do I minimize the filing of unfounded harassment claims?
A. Employers should expand the focus of their harassment prevention efforts to include more than strict “legal compliance.” They should work to build a culture of compliance that focuses on ways to identify and eliminate inappropriate behaviors, as well as illegal behaviors. The key components of a strategy to build a culture of compliance include:
- Employers should establish, distribute to all employees, and enforce a policy that prohibits inappropriate behavior (including harassment), and sets out a procedure for making complaints. The policy and procedure should be in writing and employers should obtain a written confirmation from employees that they have reviewed the policy. The policy should inform employees that they will not be retaliated against for making a good-faith complaint.
- If the employer conducts a prompt, thorough, and impartial investigation of any complaint that arises and undertakes swift and appropriate corrective action, it will have fulfilled its responsibility to “effectively prevent and correct harassment.”
- An employer should correct harassment that is clearly unwelcome regardless of whether a complaint is filed. For example, if there is graffiti in the workplace containing racial or sexual epithets, management should not wait for a complaint before erasing it.
- An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedures.
- An employer should keep records of harassment complaints and check those records when a complaint of harassment is made to reveal any patterns of harassment by the same individuals.
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