Harassment is a complicated subject full of gray areas and misinformation. When, who, how, where, what — there are so many questions as to what constitutes harassment and what a company’s legal responsibilities are.

Here are some real-world questions that employers have voiced: The myth and the fact.

Myth #1: Sexual harassment is the only true form of unlawful harassment.
Fact: As a type of discrimination, workplace harassment may be based on any of the protections of federal and state law, including gender, race, religion, ethnicity, age, disability, marital status or sexual orientation.

Myth #2: Sexual harassment laws protect women, not men, in the workplace
Fact: Sexual harassment is not confined to females. The number of sexual harassment complaints filed by men with the Equal Employment Opportunity Commission quadrupled in the last decade; in the year 2000, they accounted for 13.6 percent of all sexual harassment complaints filed with the agency. The U.S. Supreme Court also ruled in a 1998 case that men are protected from harassing behavior.

Myth #3: Sexual harassment only occurs when a power holder threatens job consequences for refusing a sexual advance.
Fact: Any unwelcome conduct — verbal, physical or visual — that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment is harassment.

Myth #4: A single, isolated act can never violate workplace harassment laws.
Fact: While persistent, pervasive behavior is usually required before a workplace becomes legally hostile, a single severe physical act, threatening behavior or use of extremely offensive words, may suffice.

Myth #5: An employee whose conduct creates an offensive environment for a co-worker must intend to offend for it to be considered harassment.
Fact: A claim for hostile environment sexual harassment does not require proof of intent to harass. Many people accused of harassment genuinely believe their behavior is funny or attractive. Some people even believe it is welcome or appreciated by everyone.

What matters is the victim’s reasonable perception of what is offensive, intimidating, hostile or abusive. A judge must determine whether it was reasonable for the victim with an individual set of life experiences to have found the conduct offensive, intimidating, hostile or abusive. The same standard applies to racial, religious, ethnic, age and disability-based harassment, as well as to harassment of any other protected classes.

Myth #6: An employee who is offended by a co-worker’s conduct must first tell the offender that the behavior is unwelcome before asking for assistance.
Fact: The Supreme Court made it clear in two cases in 1998 that employers must have internal complaint procedures that provide a harassed employee “multiple avenues” to complain internally. The law requires that employer policies provide several ways for employees to request that unwelcome harassing behavior be stopped, including complaints to managers, supervisors and/or the human-resources department. These policies, coupled with appropriate corrective action when harassment occurs, can support a successful defense to claims of supervisory harassment that the employee did not first voice through the internal complaint process.

Myth #7: A manager has no obligation to take action unless there is a formal complaint by an affected employee.
Fact: A manager or supervisor who becomes aware of harassing conduct must act even though no formal complaint has been made, or the victim withdraws the complaint or leaves the work environment. The harasser may engage in similar conduct affecting other individuals in the workplace.

Myth #8: Policies that prohibit retaliation should protect only the person making a complaint for workplace harassment.
Fact: Federal and many state laws absolutely prohibit reprisals or retaliation against any person who acts in good faith during or in connection with the investigation and resolution of a workplace harassment complaint. Every person who participates in an employer’s internal investigation is protected from all forms of retaliation. This includes the person reporting the incident, the person whose conduct is the subject of the report, and any co-worker or administrator who may have knowledge of the events or issues being investigated.

Myth #9: Only managers and supervisors with power over employees can violate laws prohibiting retaliation.
Fact: While retaliation occurs with direct reprisals by management, co-workers’ behavior may also violate the law and company policy, including ostracism, threats, taunts or abusive gossip.

Myth #10: A company is not responsible for the conduct of vendors, customers or other non-employees.
Fact: Both federal and state laws define workplace harassment as conduct that unreasonably interferes with an employee’s ability to perform the job. In maintaining a harassment-free workplace, employers are therefore responsible for the inappropriate verbal, physical or visual (graphic) conduct of employees, supervisors, managers, or others with whom their employees come into contact in their work environment. This includes visitors, vendors and suppliers, even customers. Policies must specify that if an employee experiences inappropriate behaviors by third parties with whom they come into contact while working, the employer will investigate and take corrective action.

Myth #11: Temporary employees and independent contractors are not protected by workplace harassment standards.
Fact: All individuals are protected by legal standards and company policies while performing work for or on behalf of a company.

Myth #12: A business can never be liable for harassment unless the affected employee suffers a tangible or financial loss.
Fact: In the twin 1998 rulings by the U.S. Supreme Court, in some situations, simply working in an environment that is offensive, intimidating or hostile is sufficient to require a report and appropriate corrective action. It is not necessary for the employee to demonstrate that the conduct has actually resulted in tangible loss of pay, benefits or status.

Myth #13: The purpose of workplace harassment policies and disciplinary actions is to punish offenders.
Fact: While the effect of discipline may be punishing, the purpose of policies is to create a work atmosphere where every employee is comfortable raising their concern with an administrator or human resources, so that it can be promptly addressed. According to the U.S. Supreme Court, when a supervisor’s harassment results in a tangible job action that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits, the employer may be automatically liable.

However, when no tangible job action is undertaken by a harassing supervisor, the employer may still be legally responsible unless it had an enforceable policy and internal complaint procedure, trained supervisors on harassment prevention, and the victim unreasonably failed to use the internal complaint procedure.

Patricia S. Eyres is an experienced attorney with over 18 years defending businesses in the courtroom. She is a full time professional speaker and author. Her most popular presentation is “Leading Within Legal Limits.”




POSTED ON: 10/1/2003