This session was presented on July 21, 2022
When does behavior cross the line in the workplace? Join us as we define unlawful harassment and provide insight into the obligations of employers and managers. With a focus on preventative measures, best practices, and relevant laws, you’ll walk away with tips on the most effective steps to prevent and correct unlawful harassment.
Sarah B., PHR (00:00):
All right. Welcome, everyone. I’ll pause for a moment while we all get settled in here. Welcome, welcome. I’ll give another few seconds here and then I’ll go ahead and jump in.
Sarah B., PHR (00:25):
All right. Well, welcome, everyone. Again, thank you so much for joining me today. I’m really excited to welcome you to our training, Preventing & Addressing Unlawful Harassment. Before we jump in, I’d just love to very briefly introduce myself. My name is Sarah. I have worked in a number of HR roles in a multi-state capacity. I have a certification in HR and I’m a training specialist, currently seven years with my company, and I have given hundreds of presentations on harassment prevention and training for the workplace, so I’m excited to give you a quick little preview into that for the next 30 minutes.
Sarah B., PHR (01:07):
Some quick housekeeping items before we really get there. We will email you a recording of this presentation and a copy of the slides within about 24 hours, so stay tuned for that. There’s nothing you need to do there. We usually hold a poll or two, but instead I’m going to mix it up today and just ask you for some brief thoughts on a couple of case scenarios, so feel free to participate if you’re feeling it. Then finally, please use the Q&A box for questions or to answer the case scenarios. I will have a very brief session at the end to help answer questions, though I suspect because we have a lovely large group here I won’t get to all of them, so stay tuned for that.
Sarah B., PHR (01:52):
Now, company training in matters of harassment is critical to compliance whether or not it’s required by law, so I’m so glad all of you are here today. Although I could spend two hours on talking about harassment prevention, and we have certainly held those, this session will be much more brief. To be clear, this may not be the webinar for you if you feel well-versed in the very general concepts around harassment prevention in the workplace. In this half hour, I’m mostly going to be covering the important basics, again, because of the time.
Sarah B., PHR (02:26):
In the session, I will start with the underlying federal regulations that dictate illegal harassment. I’ll define and discuss what constitutes harassment and what doesn’t. Then I’ll wrap up with a discussion on handling and responding to complaints. We will touch on the manager’s role, and again, I’ll try and leave a couple minutes at the end for any questions you may have. Fair warning, it’s likely I’ll run over maybe five minutes, so just a heads up on that. Just to note, you see this on the screen, but this webinar does not meet any state training requirements, so again is a really good overview.
Sarah B., PHR (03:02):
Okay, for this session, I will be focused on federal laws and regulations, but I did first want to note that multiple states, including California, Delaware, New York, and many more do require private employers to train supervisors and sometimes non-supervisory employees on sexual harassment prevention. Each of these states has its own requirements about what must be in the training, so do be sure to research your own state and what may be required.
Sarah B., PHR (03:36):
Okay, harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. There are a few others at play, but I really want to focus in on these three. Title VII is a federal law that applies to employers with 15, 1-5, or more employees, including state and local governments. It also applies to employment agencies and to labor organizations as well as to the federal government. This act prohibits employment discrimination based on race, color, religion, sex, or national origin, and Title VII’s broad prohibitions against sex discrimination were amended with the Pregnancy Discrimination Act, making it illegal, to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to those. Next, the Age Discrimination in Employment Act protects folks who are 40 years of age or older in the workplace. Then the Americans with Disabilities Act as amended prohibits employment discrimination on the basis of disability in all employment practices.
Sarah B., PHR (04:53):
Now, the governing body over discrimination and harassment in the US is the Equal Employment Opportunity Commission. I’ll start referring to it as the EEOC. Most employers with at least 15 employees are covered by EEOC laws, as are most labor unions and employment agencies, too, so they have the authority to investigate charges of discrimination against employers who are covered, and the role is to evaluate allegations and then make a finding. If they find that discrimination has occurred, they’ll try to settle the charge, and also have the authority to file a lawsuit.
Sarah B., PHR (05:38):
Let’s dive in a little more now, get a little more specific. Illegal harassment may be based on any of these protected categories or classes that you see on the screen. We often only think of sexual harassment, which is harassment based on gender. Many don’t think of harassment based on religion, military service, race, disability, all of these. Everyone is a member of multiple protected categories. Everyone has a race, everyone has an age, a gender identity, even those folks who we might not think are in a protected category, let’s say a 39-year-old white male with no medical conditions, still a member of a protected class. One thing I’d like to point out is that many states and the EEOC considers sexual orientation and gender identity to be protected classes, so absolutely, you need to make sure that everyone is operating on the assumption that these are protected classes.
Sarah B., PHR (06:38):
Because of this, it’s critically important that employers take discrimination and harassment based on these protected class statuses very seriously, and keep in mind that illegal harassment may be instigated by anyone regardless of their protected class status, so be sure to familiarize yourself with any additional classes that are protected by state law, and also make sure that you’re aware of the legal standards in your state. As just a single example, New York actually has a lower bar than severe and pervasive, which we’ll talk about later. That’s something you would very much want to be aware of if you were an employer in New York. Again, just make sure you’re aware of stay requirements as well.
Sarah B., PHR (07:24):
Okay, well, let’s actually jump into our first case scenario, just kind of get you warmed up here. I’ll give you a few seconds to think about this, and then I’m going to jump in with my two cents about the situation, but feel free to use the Q&A box to chime in if you have any thoughts. We’ve got Louis, the CFO who frequently asks Camila, a payroll clerk, about her boyfriend, such as what she and her boyfriend did over the weekend, whether they’re thinking of living together, and whether she’s also dating other men. Camila complains about Louis’ intrusive questions and he angrily responds that he’s just trying to boost morale by taking an interest in his employee’s personal lives. What do you all think about this one? Is Louis’ behavior acceptable? Do you think it might be illegal? Again, I certainly understand that we have not gotten into this yet, but I do always love seeing if you have any thoughts, so I’ll give you just a minute to think about this.
Sarah B., PHR (08:33):
All right, we’ve got a few great thoughts here. For the sake of time, I’m just going to go ahead and jump in here. I want to start by pointing out first that the names and genders in this scenario and the next, they don’t actually matter, it could be anyone we’re talking about, and the general concepts are still going to apply. In this scenario, my assumption is that Louis is Camila’s boss based on the titles. One big concern is that he angrily responds to her. When Camila complains about his questions, that should be his flag to stop. Again, some of these questions seem perfectly fine, asking about her weekend, that’s great. Asking if she’s also dating others, that could be complicated. It’s probably going to be better to focus on more general innocuous topics. If Louis doesn’t end this line of questioning, that’s making Camila uncomfortable, truly repeated intrusive questions of a sexual nature would most likely be considered unlawful harassment, so that could be a big concern down the line, so I would definitely say this is a yellow flag.
Sarah B., PHR (09:43):
All right, well, congrats on making it through the first scenario. Now, let’s talk about unlawful harassment in more detail since we have the protected categories in mind. Any unwelcome physical or verbal behavior based on a protected category can count as harassment. Let’s take some time to focus in on the definition of harassment. Sexual harassment means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when submission to the conduct is made either explicitly or implicitly a term or condition of someone’s employment, this submission to or rejection of the conduct by someone is used as the basis for employment decisions that affect someone, or this conduct has the purpose or effect of substantially interfering with someone’s work performance, or creating an intimidating, hostile, or offensive working environment. Now, to be unlawful, the conduct must be sufficiently severe, or to create a hostile environment or harassing conduct.
Sarah B., PHR (10:52):
Now, I want to talk more about this buzzword so you know what I mean. When talking about severe and pervasive behavior, it means it keeps happening. It’s not a simple offhand comment made in bad taste, but wasn’t intended to upset someone and won’t be made again. Again, I mentioned this a minute ago, be aware of state laws on this piece, because again, in New York, the severe and pervasive piece no longer applies. All that said, courts have found in any state that a single act can be harassment if the act is truly extreme, such as a physical assault, or something like that.
Sarah B., PHR (11:33):
Now, sexual harassment occurs in two basic forms. We have quid pro quo harassment and hostile environment harassment. We’ll start with quid pro quo here. I’ll talk about hostile environment in just a second. Sexual harassment is, by definition, a type of discrimination, which includes bullying or coercion of a sexual nature. Any type of unwelcome or unwanted sexual advances, requests for favors, or other conduct that’s used as a condition of employment may be considered unlawful sexual harassment. If a supervisor uses sexual favors as a basis of employment decision-making, that could also be considered sexual harassment in the workplace.
Sarah B., PHR (12:16):
In this context, quid pro quo basically means something for something, or this for that. Quid pro quo would be like a demand or a request that the complainant go out on dates or engage in sexual conduct with the harasser in order to affect employment decisions. As an example, let’s say my boss tells me that I have to sleep with him or go on a date with him and then he’ll promote me and give me that raise I’ve been hoping for. That’s quid pro quo harassment, this for that.
Sarah B., PHR (12:50):
Okay, so type number two, hostile work environment harassment. This type of environment is created when a pattern of offensive sexual conduct is involved. This includes unwelcome verbal or physical conduct based on sex, race, or other legally protected characteristics that unreasonably interferes with an employee’s work performance or creates that hostile or offensive work environment. It’s important to know that the victim can be anyone affected by the conduct, not just the target who the offensive conduct was directed towards. If David and Maria have a great rapport and they love trading race-related jokes during every shift, a coworker nearby might be offended, even if they didn’t intend for that coworker to overhear, even if the coworker is not a member of the protected class that they’re joking about.
Sarah B., PHR (13:43):
Really, anyone in the workplace can commit this type of harassment. It could be a manager, a coworker. It could even be someone like a contractor, a vendor, or a guest. Liability is usually determined by whether the employer knew or should have known of the conduct unless the employer took immediate and appropriate corrective action. As a final example here, if there’s a specific vendor who fills the soda machines on the company premises, and they’re harassing an employee at the front desk, the employer could call the vending company and request a different service person, they could hire an alternate company, or they could even just have the machines removed. The employer in this situation would be considered to have a great deal of control over the vendor and would need to take action to protect their employee.
Sarah B., PHR (14:37):
Now, on the flip side, let’s discuss what is not harassment. Federal law does not prohibit simple teasing offhand comments or isolated incidents that are not extremely serious, so really, the conduct must be so objectively offensive as to alter the conditions of someone’s employment. Remember that it must be unwelcome and based on one of those protected classes or categories. Again, anyone in the workplace could commit harassment, an executive, rank and file employees, third parties like the vendor we just talked about. I guess as another example, or an example in this case, if someone is frequently telling sexist jokes that disparage women, a man who is offended is free to report that, or even file a claim for harassment.
Sarah B., PHR (15:32):
Just remember if the equation is not complete, like we have a grumpy boss, a dysfunctional team, or a mean-spirited coworker, but we don’t have unwelcome conduct that’s based on a protected class, then we don’t have unlawful workplace harassment. Even if they are harassing, the conduct isn’t necessarily unlawful. Harassment only becomes unlawful when tolerating it is a condition of continued employment, or it’s that severe or pervasive piece, so a reasonable person would find it hostile, intimidating, or abusive. I like the second half of this slide here that gives you the little equation for what makes it illegal.
Sarah B., PHR (16:16):
Okay, so on these next couple of slides, I’ve provided some examples of what harassment may look like. I’m not going to spend too much time on any of these, but just wanted to help get you thinking of what could be counted. First, we have verbal harassment based on sex. That could be like dirty jokes, bragging about sexual conquests, repeated solicitations, and some verbal harassment examples based on other categories is a pretty common one where a lot of mistakes can happen. This could be ethnic jokes, slurs, and insults, threatening comments based on categories like race or disability. If you’re looking at this screen and you think some seem mild, that might be fair, and they might not even offend the recipient. Maybe you have a close friend in the workplace and you have intimate nicknames for each other, but a bystander or a coworker could take offense, and this is really where the employer could potentially be liable.
Sarah B., PHR (17:15):
Then two more categories of harassing behavior here. Some examples of visual harassment could be displaying sexually suggestive or explicit objects or posters, maybe having websites up, or screensavers that are offensive, making sexual gestures, or leering. Then physical harassment’s another category. Obviously, I can’t list every scenario, but I’m sure you get the idea. This could include hugging, or kissing, touching, or grabbing, cornering, assaulting, the list could go on.
Sarah B., PHR (17:51):
Then finally, harassment can also be based on gender and sexual identity. Some examples of this are listed on the screen here, commenting or complaining about an employee’s voice sounding different than you think it should, maybe thinking they sound too masculine or too effeminate, consistent or deliberate use of incorrect pronouns, so if someone prefers the pronouns he/him and you intentionally call them “ma’am,” or you continually use “she” and “her” to refer to them, that could eventually be seen as harassment, and also asking really personal intrusive questions about previous names used, transition surgery, sexual history, none of that’s okay. This is true in interviews and on applications as well as in the workplace. This, too, this list could go on, we can’t name every example and situation, but hopefully this does give you a good idea.
Sarah B., PHR (18:49):
Okay, let’s touch on workplace bullying now. This refers specifically to repeated unreasonable actions of individuals or a group directed towards an employee or a group of employees, which are intended to intimidate, degrade, humiliate, or undermine, or which create a risk to the health or safety of the employee. Bullying can often go unnoticed in the workplace because it tends to be a slow deliberate process of emotional and psychological manipulation that can be tough to detect or prove initially. Employees who feel bullied are more likely to miss work for fear of being in the environment with the bully, and they’re also more likely to leave their jobs, which can lead to high turnover rates and the loss of good talent. Do keep in mind that bullying could rise to the level of harassment or discrimination, so it’s important to take it seriously.
Sarah B., PHR (19:49):
Okay, so onto best practices for responding to complaints, and my homework assignment for you today, if you don’t know exactly who to report harassment issues to within your company, look it up, and make sure it’s clear. Okay, so let’s say someone’s concerned about harassment and that talking to the harasser about the problem either doesn’t work, or it’s just not possible for a concerned employee, there are many options for next steps, so let’s run through them. Do note that any of these approaches can absolutely be taken by employees, but the top few are generally preferable to employers since the ultimate goal is to resolve these sorts of complaints in-house.
Sarah B., PHR (20:33):
The first option, and hopefully one employees feel comfortable with, is approaching their supervisor or the first designated person within the chain of command. Another option would be to report concerns to an HR person or the HR department. Now, there should be a clear harassment or complaint reporting procedure for your company, and again, it should be in your employee handbook. Next, if employees don’t want to voice a concern to the direct manager, let’s make sure there’s an open-door policy to upper management. Then finally, employees always have the option to make a complaint to a state or federal agency such as the EEOC. A key point here before we move on, is that we need to enable employees to file their concern with the company free from any retaliation.
Sarah B., PHR (21:27):
Okay, so I could spend an entire separate presentation on the role of a manager in harassment concerns, but of course, we don’t have time to cover everything today. This is kind of a teaser webinar for you just to kind of get you thinking about all of the aspects of this. Ultimately, managers are held to a higher standard to prevent and recognize harassment in the workplace, so training is key, and really, prevention is the best tool to avoid harassment in the workplace.
Sarah B., PHR (21:58):
Managers have a large role in creating a workplace culture that doesn’t allow harassment to occur. This culture includes an environment in which employees feel afraid to raise concerns and are confident that those concerns will be addressed. Thinking from the employer’s perspective, an employer is legally responsible for a supervisor’s harassment of a worker if, as a result of rejecting the supervisor’s advances or demands, the employee suffered a tangible employment actions, that could be like a demotion getting fired, something like that. That said, an employer may be liable, even if there’s no tangible employment action. Basically, you can get in trouble because of your supervisor’s actions, which is why training for supervisory employees is so important. Final note here, I also want to share that you as supervisors or HR representatives or senior management, you also have a right to a workplace free from harassment.
Sarah B., PHR (23:03):
Now, here are some tips for handling a harassment complaint, but above all, please know that once you receive a complaint, or you become aware of the conduct, prompt action is your immediate responsibility. First piece, an employee may complain without using the term “harassment.” The role of a supervisor and above is to have that heightened awareness for conduct that could constitute harassment and the ability to take swift action. Complaints can come in various forms, so it could be a verbal complaint, an email, maybe even a text message. Now, if you find yourself in this situation, do assure the employee, that complaints of this nature are taken very seriously, and don’t promise confidentiality, so while you, of course, should be discrete with the complaint in order to share the information with HR and to conduct an investigation, confidentiality cannot be guaranteed.
Sarah B., PHR (24:01):
Do remind the employee that the company has zero tolerance for harassing conduct and zero tolerance for retaliation for making a complaint or participating in an investigation. Also, just witnessing the behavior is enough to require an employer response and investigation, so if you’re walking by and you see an employee physically block someone else’s path every day of the week at work, clearly you’re going to need to investigate. Even if no one comes to you, or voices a concern, you’ve been seeing it, and that means you knew or should have known. Finally, don’t retaliate, and I’ll focus on this in just a few slides.
Sarah B., PHR (24:45):
All right, so let’s get to our final case scenario here. We’ve got Raj and Annika, and they’ve both worked in the same department for four years, they sit next to each other. Lately, Raj has been joking about Annika being his “work wench,” and while she was amused initially, he then started calling her “work wench” in front of other employees. Annika complained, saying she’s feeling tired of the term and she feels offended by it. When you ask Raj about it, he’s like, “Oh, come on. It’s just a joke. She even laughed. A silly nickname like that can’t be illegal.” What do you all think about this one? Is Raj out of line. If you were their manager, would you need to do anything at this point? Go ahead and use the box to share any thoughts you’ve got on this one. I’ll give you just 30 seconds while I take a sip of water here.
Sarah B., PHR (25:36):
All right, we’ve got a few good thoughts here. Again, for the sake of time, I’m going to go ahead, jump back in. Here’s what I think. At this point, Raj started it as a joke, which is great, but then Annika said it began to offend her, and that’s pretty much our cue for where it should stop. Is that unlawful harassment? Maybe. That would be especially true if Raj was a supervisor, but I would say at this point, if it continues, that’s when we’re really going to have an issue.
Sarah B., PHR (26:22):
Let’s think about it like this. Annika may have laughed initially, although this doesn’t necessarily even mean she liked the joke the first time, but now she’s communicated that she’s tired of the term “work wench” and is even feeling offended by it. That sounds reasonable to me. Being okay with something once doesn’t mean she has to feel comfortable with it if it continues. If she feels like Raj is using an offensive term and continuing to use it numerous times, especially one that could be construed as a sexual or a demeaning phrase, I think the company should absolutely take action, so as their manager you’d want to have a conversation with Raj and ensure that he stops using that term. Then if Raj was a manager, he might need to retake his harassment prevention training, or even be written up if he continued.
Sarah B., PHR (27:14):
All right, final slide before Q&A. I warned you at the beginning, we will probably run a few minutes over, but if you have to jet, we will definitely be sending out within about 24 hours this recording, as well as a PDF of the slide, so you could always come back to it.
Sarah B., PHR (27:30):
Okay, yes, let’s wrap up this session with a look at unlawful retaliation. I feel like I’ve been building to this. It’s illegal and it should be against your organizational policies to retaliate in any way against anyone who has lodged a harassment complaint, has expressed a concern about harassment, or has cooperated in a harassment investigation in any capacity. The definition is really broad, so do be sure that anyone involved in the investigation, including interviewees and supervisors, are properly informed that you as the employer will not tolerate any form of retaliation.
Sarah B., PHR (28:11):
Retaliation would be taking some sort of employment action after a complaint was shared. It doesn’t have to be the same day or the same week if someone complains today and is fired next month, it might be hard to prove the termination decision wasn’t related to the harassment complaint. I also really want to emphasize the importance of preventing retaliation, so an employer may be able to get a harassment charge declined, but beating retaliation allegations is difficult and expensive, and retaliation tends to be one of the fastest growing employee complaints, so again, just be very careful with discipline, with terminations, even performance reviews of any employees that are connected to a harassment investigation.
Sarah B., PHR (29:00):
Finally, employees should not be reprimanded or questioned about bypassing that chain of command for any complaint of harassment. I’d encourage you to go back to that slide and review it again. Just remember that they have the ability to share their concern of harassment with whoever they want, whether it’s their direct manager, or someone higher up, or HR. They get to choose and you should not retaliate against them for that choice.
Sarah B., PHR (29:28):
Okay, a couple of final tips for you. We’re going to jump into Q&A. I know I’m right on the dot here. Definitely take proactive and documented steps to prevent and correct prohibited harassment before it becomes pervasive or unlawful, so really, proactive is key here, and training is key. Also, do your best to create an environment where employees feel free to raise concerns and are confident that you’re going to address those concerns. Again, prevention, be proactive, create an environment that is free of harassment, and that people feel comfortable sharing concerns they have.
Sarah B., PHR (30:12):
Okay, thank you so much for joining me. I’m going to go ahead and review some of the questions you’ve got here. My co HR expert has been great about helping with some of those throughout the session. Yeah, let me take a quick peek here. Let’s see what we’ve got.
Sarah B., PHR (30:31):
Someone asked to see the equation again. I’m not going to flip back through, but again, you’ll receive a PDF of the slides within 24 hours to the email you registered for this webinar with, so you can always go back and check out that equation again.
Sarah B., PHR (30:45):
Let’s see here. Another question. Someone said, “You mostly answered this, but just wanted to double-check. We’ve become aware of an allegation that a team member has been harassed at work, but she doesn’t want to file a complaint. Do we need her consent to investigate the matter?” Yes, that’s a good question. I just said “yes,” but the answer to this is no. If you or any of your managers become aware that harassment discrimination, workplace violence, any other illegal activity has or may have occurred, it sounds like in this case, someone is alleging that harassment occurred, so you are legally required to investigate and to take steps to stop the behavior. Again, knowing about this kind of behavior and taking insufficient action can make you liable as the employer, so you absolutely need to investigate and stop any questionable behavior, even if the victim doesn’t want to cooperate, or feels uncomfortable with it, you can be compassionate, and again, share about no retaliation, et cetera, but it is your duty and your obligation to investigate any concern of harassment that’s been shared, or that anyone is made aware of.
Sarah B., PHR (32:05):
All that said, just kind of looking over your question again, if your employee just had a general gripe that maybe seems to indicate a personality conflict, you could defer to her wishes on whether to act. Minor conflicts between employees could, could cause friction in the workplace. Those don’t obligate you as the employer to investigate and resolve the issue. I’m rereading what you said, “an allegation that a team member has been harassed.” Of course, you’ll want to dig a little bit more. If the harassment ended up just being, I don’t know, calling them just a silly name once, that might not require much investigation, but again, any concern of harassment, you are required to act.
Sarah B., PHR (32:54):
Okay, we’re at 33 after, so I’m just going to take one final question here. Looking through. Oh, we didn’t get to talk about… I mean, there’s so much more to talk about in this session. Someone said, “An employee reported to me that another employee made a racially insensitive comment in the break room in front of several people. What course of action should I take?” I really wish we had more time to talk about this. I’m going to repeat what I said before. It’s your duty as an employer to immediately stop any behavior that could constitute unlawful harassment, bullying, anything like that. Again, for this situation with a racially insensitive comment, I would recommend you start by investigating, collect statements. It looks like there were people around when it happened. Acting in good faith and documenting these efforts, these steps can help provide protection against any involved employees, so I would say be sure to document all conversations, and really, start an investigation.
Sarah B., PHR (34:04):
If you do find that the comments were made, I would recommend you consider disciplining the employee, but in a manner consistent with how you’ve disciplined other employees for infractions of a similar severity. It’s hard to give more detailed advice without having a lot more information about your company and about any situations that have happened in the past, but I guess I would just say absolutely start by interviewing and starting to investigate this. Definitely take it seriously.
Sarah B., PHR (34:40):
Okay. Sorry, I ran five minutes over, but I do hope that I have given you some good things to think about. If you’re a little bit newer to these concepts, I would absolutely encourage you to dig in more because there’s a lot to it, and it’s a really important piece to make sure that you have a healthy and thriving workplace culture and one that does not allow harassment. Thank you so much. Again, as a final reminder, we’ll email you a PDF of the slides, and this recording in about 24 hours, so thank you so much and have a good rest of your day.