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Hsu & Associates LLC Employment Law Articles and FAQsFREQUENTLY ASKED QUESTIONS ABOUT WORKPLACE HARASSMENT PREVENTIONThis article about preventing workplace harassment includes a generalized discussion of some of the laws governing workplace harassment. It is designed to identify key concepts and is not intended to be a comprehensive discussion of the statutes or law governing this area. These materials should not be construed as legal advice or legal opinion, which can be rendered properly only when related to specific facts. 1. Why is preventing workplace harassment important?a. Workplace harassment is a form of discrimination. It is against the law and against the policies of most employers. Workplace harassment is more than just sexual harassment, although sexual harassment has received the most attention. b. Employees who engage in workplace harassment are typically subject to discipline, up to and including termination. Employees who are subjected to workplace harassment should be encouraged to seek assistance from their employer’s human resource representative or other individual designated to address employee concerns. 2. What is “illegal workplace harassment”?a. Discriminatory or illegal workplace harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of his or her race, color, gender, religion, sexual orientation, age, national origin, disability, or other protected category (or that of the individual's relatives, friends, or associates) that
b. Examples of discriminatory or illegal workplace harassment include:
3. What is “illegal sexual harassment”?a. Sexual harassment is one type of illegal or discriminatory workplace harassment. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
b. The first two types of sexual harassment often are referred to as "quid pro quo" harassment, while the third type often is called "hostile environment" harassment. c. With “quid pro quo” harassment, there generally has been some tangible job action taken against the victim, which causes a significant change in his/her employment status (e.g. termination, demotion, failure to hire or promote, a significant change in salary, benefits or responsibilities, etc.). d. For “hostile environment” sexual harassment, the conduct must be sufficiently severe and pervasive to change the work environment into one that is intimidating, hostile or offensive. In addition, the conduct must be sexual in nature and unwelcome to rise to the level of harassment. Depending on the type of conduct, isolated incidents may not be enough to constitute sexual harassment. e. When evaluating allegations of sexual harassment, courts assess the objectionable conduct from the perspective of a reasonable person "in the shoes of” the victim. Thus, the courts assess the alleged behavior both objectively (i.e. from the perspective of a reasonable person) and subjectively (i.e. from the perspective of the victim). f. Courts also consider factors such as the frequency of the conduct, the severity of the conduct, and whether the conduct is physically threatening or humiliating or merely an offensive comment. 4. What are some examples of sexual harassment?a. Depending on the circumstances, sexual harassment may include:
b. Examples of conduct that, depending on the circumstances, may not constitute sexual harassment include:
NOTE: THESE ARE NOT EXHAUSTIVE LISTS!! 5. Who can be a harasser?a. Any employee at any level can engage in workplace harassment. Sexual harassment can be engaged in by either men or women. Other forms of discriminatory harassment can be engaged in by anyone, regardless of their race, sexual orientation, religion, etc. b. Non-employees, such as independent contractors, consultants, customers, vendors, or anybody else with whom the employer has a business relationship, may also engage in workplace harassment. 6. Who can be a harassee?a. Many people assume that sexual harassment only occurs when a man acts inappropriately towards a woman, or that racial harassment only occurs by a Caucasian toward an individual of another race. These assumptions are incorrect. More and more sexual harassment cases are being brought by men alleging harassment by women and by employees alleging sexual harassment by someone of the same sex. b. Racial and religious harassment cases can be and are brought by employees of any race or religion. There are cases where employees allege that their supervisors are illegally harassing them, and cases where supervisors allege that subordinates are harassing them. 7. Where can harassment occur?a. It is also a misconception that workplace harassment can only take place on an employer’s premises. b. Inappropriate jokes, comments and other behavior engaged in at office parties or at events held off site (such as sales meetings or recreational activities) may provide the basis for a claim of illegal harassment. 8. What is “retaliation”?c. The law also protects employees from retaliation for complaining about discriminatory harassment. This means that an employer (or supervisor or co-employee) cannot take any adverse employment action to "punish" the employee for complaining about illegal harassment. Employees who report workplace harassment are protected from retaliation even if they aren't the victims of the offensive conduct and even if the employer determines that no illegal harassment occurred. d. Acts of retaliation can take many forms, such as not promoting an employee, giving an employee a poor performance review, gossiping about an employee, or ignoring the employee because of his or her complaint of harassment. 9. What must employers do to prevent workplace harassment?a. Employers must promote and maintain work environments free from illegal harassment. This means that employers must discourage harassment in the workplace. When harassment does occur, employers must act promptly to make the conduct stop and to prevent it from happening again. b. In Massachusetts, employers are required to have a written anti-harassment policy and to distribute it annually to employees. The mere existence of a policy is not enough to shield an employer from liability. All employees should take the time to review the policy and to be familiar with what conduct is prohibited and how to report harassment. c. An employer must promptly investigate all allegations of illegal harassment. The level of investigation will depend on the facts of each individual case. d. An employer must take appropriate remedial action to stop discriminatory harassment and to prevent it from reoccurring. For example, the employer should determine what, if any, disciplinary action will be taken against the alleged harasser and will be effective in making the harassment stop. The employer also should assure the alleged victim that he or she will not be retaliated against for reporting harassment. 10. What should employees do to prevent workplace harassment?a. Maintaining a harassment-free workplace requires the cooperation of all employees. As an initial matter, all employees are required to abide by their employer’s workplace policies and must refrain from engaging in harassment themselves. b. Also, employees are encouraged to report any harassment that they experience or witness. Finally, employees must refrain from retaliating against employees who report harassment, for example, by teasing, shunning or making jokes about them. 11. Why wouldn’t an employee complain about harassment?a. Employees should report harassment immediately although they may be hesitant to complain of harassment or delay filing a complaint. b. However, managers should be sensitive to the reasons an employee might not complain about harassment so that they can appreciate the employee's perspective if a complaint is made.
12. What are the costs of workplace harassment?a. In Massachusetts, an employer will be “strictly liable” for a supervisor’s sexual harassment of an employee (and probably other types of discriminatory harassment). This means that an employer may be liable for a supervisor’s action even though the employer had no idea that the supervisor was engaging in appropriate conduct and had no way of knowing about this conduct. b. Both employers and managers face the potential of corporate and/or personal liability. In addition, harassment can have a significant non-monetary impact on a workplace. Harassment in the workplace causes decreased productivity, low morale, and negative publicity. It is also a drain on the time and efforts of managers and employees alike. Practical Management Tips … In Preventing Workplace Harassment
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